Mohareb v Lambert & Rehbein

[2] The first defendant is a company which carries on the business of engineers. The plaintiff was employed by the first defendant from 15 September 2008 as a Senior Structural Engineer in its Brisbane office. His employment was terminated on 5 November 2008. The employment agreement was in writing and executed on 17 July 2008.

[3] On 16 June 2009 Daubney J struck out the plaintiff's Amended Statement of Claim filed 15 July 2009 and gave him leave to file and serve a Further Amended Statement of Claim by 14 July 2009. The plaintiff appeared for himself before his Honour and had drafted his own pleadings. Costs were awarded against him. By letter dated 28 July 2009 the defendants' solicitors nominated three costs assessors to undertake an assessment of those costs and invited the plaintiff to select one of them. He failed to do so and in a letter dated 31 August 2009, amongst other things, the solicitors noting that failure wrote that they had applied to the court to appoint Michael Graham to carry out the assessment.

[4] The plaintiff filed an application dated 8 September 2009 seeking an order that costs not be assessed until the proceeding ends. The application was to be heard on 28 September 2009. The plaintiff did not appear on that day. His application was dismissed with costs. The representatives of the defendants notified the court that their application was returnable on 30 September 2009 and, if appropriate, the plaintiff could apply to have the order made in his absence set aside.[1] However, the plaintiff did not appear on that day for the 10.00 am call over or at any time in the course of the morning until the matter was heard. An affidavit of service by Benjamin James Sindel sworn 30 September 2009 was read and the plaintiff was called. Mr Sindel deposes that on 31 August 2009 documents, including the application to be heard on 30 September 2009, were sent by Express Post to the plaintiff's address for service. That address is the address that appears on the plaintiff's application and supporting affidavit as well as on his most recent pleading. So far as could be ascertained no communication had been made with the court by the plaintiff. I proceeded to hear the application but, since the plaintiff was not present, reserved the decision so that it could be sent with reasons to the plaintiff.

[5] The plaintiff's claim was commenced by him by Claim and Statement of Claim filed on 30 April 2009. On 28 May 2009 a Defence was filed on behalf of all the defendants named in that Statement of Claim. The first Statement of Claim named the wrong company as the first defendant but that has now been corrected. The defendants filed an application on 1 June 2009 to have that Statement of Claim struck out and the application was listed for hearing on 16 June 2009. On 15 June 2009 the plaintiff served a proposed Amended Claim and Statement of Claim on the defendants and other documents and those were the pleadings which his Honour struck out.

[6] On 7 July 2009 the plaintiff applied for an extension of time to file his Further Amended Statement of Claim and on 9 July 2009 I ordered that his Honour's orders be varied to extend the period to 28 July 2009. As a consequence of that order, the Further Amended Statement of Claim was filed on 28 July 2009.

[7] The defendants complain that the current pleading is unnecessarily prolix; mingles fact and evidence; fails to plead material facts; pleads facts which cannot support a cause of action; and makes an unsustainable claim for damages. Mr Merrell for the defendants has provided a detailed outline of submissions setting out the perceived facts.

[8] The plaintiff's claim arises out of the employment relationship which he had with the first defendant. The second, third and fourth defendants were and are directors of the first defendant. By his claim the plaintiff seeks damages for breaches of ss 52 and 53B of the Trade Practices Act 1974 (Cth) and, in the alternative, damages for breach of contract. The pleading proper is a rambling, discoursive document that pays little regard to the requirements of the UCPR. Chapter 6 of the UCPR sets out the requirements for all pleadings started by a claim. The plaintiff has complied with the formal requirements of r 146.

[9] Rule 149 is the governing provision about the structure of pleadings. It provides:

(a) be as brief as the nature of the case permits; and

(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

(c) state specifically any matter that if not stated specifically may take another party by surprise; and

(d) subject to rule 156, state specifically any relief the party claims; and

(e) if a claim or defence under an Act is relied on - identify the specific provision under the Act.

(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point."

[10] By r 150 a party must specifically plead any breach of contract and every type of damage claimed as well as any misrepresentation. And by r 152:

"Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document."

[11] Part 3 of Ch 6 concerns Particulars. By r 157 a party must include in a pleading particulars necessary to:

"(a) define the issues for, and prevent surprise at, the trial; and

(c) support a matter specifically pleaded under rule 150."

Particulars may be struck out if the particulars have a tendency to prejudice or delay the fair trial of the proceeding or are otherwise an abuse of the process of the court.[2]

"(1) This rule applies if a pleading or part of a pleading -

(a) discloses no reasonable cause of action or defence; or

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or

(c) is unnecessary or scandalous; or

(d) is frivolous or vexatious; or

(e) is otherwise an abuse of the process of the court.

(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading."

[13] There are other rules about pleadings but those are the relevant ones for this application. As a perusal of the annotations to r 149 of the UCPR reveals[3], the function of pleadings is to state with sufficient clarity the case that must be identified and, if possible, narrowed,[4] and allow the issues to be met.[5] The reason for this is so that an opposite party has a clear understanding of the case against him or her and the issues are defined. A difficulty which beginner pleaders commonly experience is distinguishing between evidence and material facts for it is the latter alone which must be pleaded. The well known observation of Scott LJ in Bruce v Odhams Press Ltd[6] identifies what must be pleaded. Material facts are those facts:

"...necessary for the purpose of formulating a complete cause of action."

It is thus clear that there is no place for the opinion of the pleader.

[14] Because it is necessary that all elements of a cause of action must be encompassed in the material facts for that cause of action it is essential that the pleader understands what is required to succeed, prima facie, in a plaintiff's action against a defendant or defendants. Unless this fundamental matter is grasped then it is unlikely that a pleading can meet the requirements of rr 149 and 150. It is here where many self-represented litigants fall down.[7] Furthermore, pleadings which are unnecessarily long, rambling and repetitious will be difficult to understand and impossible to plead to. In that sense they are characterised as "embarrassing" and are susceptible to strike out. The principal offence alleged here against the plaintiff's pleading is a failure to be "as brief as the nature of the case permits" and the introduction into the Statement of Claim of evidence, and much of it irrelevant evidence at that, by which the plaintiff would seek to prove his case.

[15] Turning to the pleading: it consists of some 20 closely typed pages appropriately numbered and paragraphed. The first 87 paragraphs are more in the nature of an affidavit, although they would be too discursive and opinionated even in an affidavit. Some examples will suffice.

"3. In late June 2008 the Plaintiff received a telephone call from Ms. Jodie Fitness who at the time was the 'Talent Manager' with the 1st Defendant. Ms. Fitness was calling to inquire if the Plaintiff would be interested in a Structural Engineering position at a senior level with the 1st Defendant.

1. At that time the Plaintiff was running his own Structural engineering practice in Sydney NSW and had been doing so since 2003.
2. By that stage the Plaintiff was beginning to realize, from the experience he'd had over the previous few years, that the size of his business was perceived as too small by many of the Clients he was interested in attracting. These Clients also had the projects that the Plaintiff was most interested in working on.
3. Also at that point the previous few months had been somewhat slow, business-wise, for the Plaintiff in particular, and for Sydney & NSW in general, while Brisbane & QLD had been growing strongly.
4. As a result the Plaintiff was thinking along the line of either to try to cultivate the Brisbane market to win projects there, try to forge an alliance with a Brisbane based entity which would provide him access to that market. Or alternatively join a Brisbane based organization in a managerial/leadership role that would allow him to build on what he had so far accomplished."

[16] There then follow a number of paragraphs setting out conversations leading to the plaintiff coming to Brisbane for an interview. The plaintiff sets out the interview identifying who was there and the expectation that the first defendant would have about his work. Paragraph 22 is in these terms:

"The 2nd Defendant then interrupted the flow of the conversation to reveal in a tone that sounded more like a confession than anything else that the Plaintiff would not be in sole charge of the Structures Division. That there was also another engineer from New Zealand who he had interviewed and who was also joining the 1st Defendant's Structures Division."

[17] The following paragraphs set out in "breathless" detail the actuality of his role once employed, as seen by the plaintiff, and his disappointment that it did not meet the representations that he alleged induced him to take up employment. Paragraph 44 is a particularly egregious example of a mixture of narrative, opinion and evidence about the "real state of the performance of the Structural Division". Paragraph 45 is in the following terms:

"Having had dealings with him over an extended period of about 5 months, the Plaintiff emphatically and confidently affirms that the 2nd Defendant in any situation that requires him to win his interlocutor over to his cause has a compulsion to grossly over emphasize the merits of his cause. This is done in a manner that is out of all proportions with the actual reality of those merits, to the point where it effectively becomes misrepresentation & deception."

[18] The plaintiff pleads a deterioration in relations between himself and the second defendant culminating, as he sets out in paras 72 to 87, in the events that led up to the termination of his employment. They are couched in overly descriptive terms and again, are a narrative rather than material facts. Thereafter the plaintiff seeks to identify causes of action.

[19] Unobjectionably, the plaintiff identifies in para 88 that he and the first defendant entered into a contract of employment. That contract is attached to the pleading. He pleads that the terms were partly in writing, partly oral and partly implied. He sets out what he pleads were the oral terms which ought to be characterised as representations leading him to enter into the contract. In para 91 the following appears:

"To the extent that the terms of the Contract were implied, they are that the 1st Defendant is required by operation of the law to treat the Plaintiff fairly."

[20] The arrangement of the balance of the pleading relates to the several causes of action. That is not an objectionable way to proceed, although setting out the material facts and making reference to the relevant paragraphs when articulating the causes of action is less likely to lead to repetition and more likely to make the pleader's task when drawing the defence more straight forward as well as more clearly identifying the issues.

[21] Paragraphs 88 to 91 and 99 to 103 concern the claim for damages for breach of contract. As mentioned, the plaintiff pleads that the contract is partly in writing and partly oral and that a term of fairness was to be implied into the contract. The plaintiff does not seek to deal with cl 20 of the employment contract which provides that the written contract contains the entire agreement and understanding between the parties. An implied term of fairness pleaded without more will be struck out. There may be potential for a pleading based on breach of an implied term of good faith in dealings between an employer and an employee. That has not been pleaded nor the material facts to support it. There is a useful discussion on the limits of such claims in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney.[8]

[22] In paras 99 to 103 the plaintiff appears to allege that the individual defendants breached the contract of employment. The contract was with the first defendant and not with the second, third and fourth defendants, who are not personally liable for damages for breach of contract.

[23] The plaintiff does not allege that he was wrongfully dismissed from his employment. His claim, in so far as it can be ascertained from this pleading, is that he was induced to take up employment on a basis that was untrue because another had been employed to that position; and that he suffered loss and damage by entering into the employment contract and relocating to Brisbane and re-establishing his career after termination.

[24] The plaintiff claims two years' salary as damages. He makes no reference to cl 16 of the contract of employment which sets out the basis upon which a party could resign or terminate as the case may be. Item 10 in the schedule requires the employee to give two weeks' written notice. The employer is required to give notice consistently with a table relating to the period of continuous service. Up to the completion of one year of service, one week's notice must be given. Clause 16.3(7), however, permits termination without notice to the employee if the employee is guilty of misconduct. By cl 16.4, misconduct has its ordinary meaning but includes relevantly in cl 16.4(2) "wilful disobedience of the employer's reasonable lawful direction". That provision will, presumably, be engaged in any defence.

[25] Paragraphs 92 to 96 deal with a claim for damages under the Trade Practices Act, including that the second to fourth defendants were complicit in the first defendant's unlawful conduct. The representations are, in essence, those which are pleaded as "oral" terms of the contract. Too much background and evidence is set out. Furthermore, representations about a "healthy and functioning organisation" do not take the claims anywhere.

[26] The pleading taken as a whole is embarrassing in that it is difficult, if not impossible, for the defendants to plead to it. Expressed as it does, it has a tendency to prejudice or delay the fair trial of the dispute between the parties.[9] There are some particular difficulties with the articulation of the causes of action which have been referred to in these reasons. There can be no proceedings against the second, third and fourth defendants for alleged breaches of the contract of employment as there was no contractual relationship with them. Accordingly, it is appropriate that insofar as it relates to the contract claim, the plaintiff ought not be given leave to re-plead that claim against those defendants.

[27] It is not clear if the plaintiff maintains that he is financially unable to retain lawyers to assist him in pleading his case against the defendants or if he chooses not to do so. He should be given one further opportunity to attempt to plead a Statement of Claim consistently with the Rules about pleadings including r 5 which sets out the overriding obligations of parties to each other and to the court, namely:

"The purpose of these rules is to facilitate the justice and expeditious resolution of the real issues in civil proceedings at a minimum of expense."

[28] The defendants seek an order that if the plaintiff is given leave to file and serve a Second Further Amended Statement of Claim it should be done within seven days and failure to do so should see the proceedings against the first defendant (and impliedly the other defendants) permanently stayed. Since the plaintiff has not appeared on this application I would be reluctant to make an order that any fresh pleading be provided within such a short time frame. The plaintiff should be given 21 days to file and serve a Second Further Amended Statement of Claim, in default of which the proceedings should be stayed. I would not order a permanent stay as the plaintiff is within the limitation period and he may retain lawyers.

[29] The defendants seek their costs on the indemnity basis. Rule 171 provides that the court may at any stage of the proceedings strike out all or part of a pleading and order the costs of the application to be paid by the party against whose pleadings the order is made calculated on the indemnity basis. The history of these attempts to produce an acceptable Statement of Claim dictates that it is appropriate that costs be on that basis. The plaintiff is a well educated man who ought to have been able to digest the criticisms made of his previous efforts, read the Rules, absorb what they mean and to have noted the observations of Daubney J on 16 June 2009.

1. The plaintiff's Further Amended Statement of Claim amended pursuant to the order of Daubney J of 16 June 2009 and varied by the order of White J on 9 July 2009 filed on 28 July 2009 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules.

2. The plaintiff have leave to file and serve a Second Further Amended Statement of Claim on or before 4.00pm on 28 October 2009.

3. In default of compliance with paragraph 2 the plaintiff's proceedings be stayed.

4. The plaintiff's claim in contract against the second, third and fourth defendants be permanently stayed.

5. The plaintiff to pay the defendants' costs of and incidental to the application on the indemnity basis.

[3] It might be inferred that the plaintiff had access to the UCPR. The Annoted Rules are readily available in the Supreme Court of Queensland Library.

[4] Gould v Mt Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517.

[5] Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 at [38].

[6] [1936] 1 KB 697 at 712.

[7] Of course, lawyers are regularly challenged on their pleadings on the same basis.

[8] (2008] [2008] NSWCA 217; 72 NSWLR 559 at [51]-[66] per Basten JA.