(1) Categories (d) - (f)
(d) All documents, including position papers and reports submitted to the first respondent's Board of Directors and Diversity Council in respect of the 2017 calendar year regarding the implementation of and/or compliance with the first respondent's "Diversity and Inclusion" policy.
(e) Role objectives and key performance indicators (including job goals, short term incentives and long term incentives) for the second and third respondents in respect of the 2017 calendar year regarding the implementation of and/or compliance with the first respondent's "Diversity and Inclusion" policy.
(f) Documents containing analyses or statistics in respect of the employment or promotion of females by the first respondent within Bands A-E of the first respondent's management classification structure in the calendar year 2017.
7 The applicant submitted that the relevance of categories (d) - (f) was that in terminating his employment, the first respondent discriminated against him on the basis of his gender, being male. The applicant's pleading of this issue in his second further amended statement of claim is economical -
73. In appointing Moss, rather than the Applicant, to the position of Vice President of Health and Safety, BlueScope discriminated against the Applicant because of or for reasons that included, his gender.
Particulars
Moss is female. The Applicant is male.
74. In the premises, BlueScope took adverse action against the Applicant in contravention of s.351 of the Act in that it:
a. injured the Applicant in his employment (Item 1(b), s.342(1) of the Act); and
b. discriminated between the Applicant and the other employees of BlueScope (Item 1(d), s.342(1) of the Act.
8 Counsel for the applicant submitted that the documents sought by categories (d) to (f) were relevant to a claim of indirect discrimination that the applicant made, that is, that there was some policy or quota system in place within the first respondent's operations which sought to favour appointments of women to positions within the company. During the course of argument, I expressed the view that such a claim had not been pleaded by the applicant, and that the spare particulars under paragraph 73 of the second further amended statement of claim did not give fair notice of such a claim. Counsel for the applicant took up the opportunity which I afforded to frame some draft further particulars of paragraph 73 of the second further amended statement of claim, and to file written submissions directed to categories (d) to (f) which I would consider on the papers.
9 The applicant proposed amendments to paragraph 73 of the second further amended statement of claim as follows -
73. In appointing Moss, rather than the Applicant, to the position of Vice President of Health and Safety, BlueScope discriminated against the Applicant because of or for reasons that included, his gender.
Particulars
Moss is female. The Applicant is male.
The discrimination was direct. BlueScope appointed Moss to the position of Vice President of Health and Safety rather than the Applicant because Moss is female and the Applicant is male.
Further or alternately, the discrimination was indirect. In appointing Moss to the position of Vice President of Health and Safety rather than the Applicant, BlueScope imposed a requirement or condition that had, or was likely to have, the effect of disadvantaging the Applicant. The requirement or condition imposed by BlueScope was that the successful candidate for the position of Vice President of Health and Safety be female rather than male. This requirement or condition was not reasonable.
The requirement or condition was in accordance with BlueScope's "Diversity and Inclusion" policy which provides (inter alia) that:
(i) Recruitment and selection practices are appropriately structured so that a diverse range of candidates is considered;
(ii) When required due to a lack of diverse representation in occupational groups, BlueScope targets diverse candidates as part of its recruitment activity; and
(iii) The principles contained in the "Diversity and Inclusion" policy are the subject of reports to BlueScope's Board of Directors, Diversity Council and senior management.
10 The respondents opposed the amendments to paragraph 73 that were sought by the applicant. The respondents submitted that the proposed amended particulars were an attempt at pleading material facts, and that they were not particulars of material facts that had been pleaded in the second further amended statement of claim. The respondents submitted that should the applicant wish to allege that the first respondent discriminated against him indirectly by imposing a particular requirement or condition in accordance with particular aspects of a policy, he should plead all of the material facts required to support that allegation.
11 I do not find the respondents' submissions on this issue to be attractive, or helpful. They rest upon a distinction that is sometimes drawn between material facts, and particulars. The distinction was explained in Bruce v Odhams Press Ltd [1936] 1 KB 697 where at p 712-713 Scott LJ stated that material facts are those necessary for the purpose of formulating a complete cause of action, whereas the function of particulars was not to fill in gaps in an otherwise demurrable statement of claim, but to -
… fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.
12 The distinction is also drawn by a note to r 16.41 of the Federal Court Rules 2011 (Cth), which provides -
Note 2: The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain.
13 However, there is not always a bright line between a material fact and a particular of a material fact: see, Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at p 417 (French J).
14 Any evaluation of an objection to a pleading should have regard to the purposes that are served by pleadings, which include giving the other parties fair notice of the case that must be met at trial, identifying issues for the purpose of formulating any discovery obligations, identifying issues against which rulings on evidence might be made at trial, and formulating issues for decision: see, Banque Commerciale SA, en liquidation, v Akhill Holdings Ltd (1990) 169 CLR 279 at p 286 (Mason CJ and Gaudron J). A statement of claim that contains an applicant's "real case" buried within the particulars of conclusory headline allegations may fail to fulfil one or more of these purposes, including because it does not state the material facts in a way that requires that they be addressed by the respondent in the defence: see r 16.07. In such a case, the issues that are joined, and the real issues in dispute, may not clearly arise from the pleadings. Additionally, a pleading which is burdened with extensive particulars of conclusory headline allegations may be so ungainly and unclear that it is liable to be struck out under r 16.21 on the grounds that it is ambiguous, or is likely to cause prejudice, embarrassment or delay in the proceeding.
15 Good drafting practice generally requires that a pleading should strive to contain little by way of particulars, and that a pleading should focus on clear and concise allegations of all the necessary material facts which are to be set out in a logical fashion. This comment is subject to the requirement that a pleading, or a document served with a pleading, should contain any necessary particulars: r 16.41. Economy in the provision of particulars is not always achievable, particularly in more complex litigation where detailed particulars of numerous transactions that are subordinate to the allegations of material fact may be necessary. Moreover, modern pleading practice promotes flexibility so as to give effect to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The Practice Notes of the Court make provision for the adoption of tailored or concise pleading processes where appropriate. Recently, in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284, the Chief Justice referred to the advantages of a clear and helpful concise statement in narrative form in a penalty proceeding in which the applicant alleged unconscionable conduct by the respondent. In this pleading environment, there should be little need for fine distinctions between material facts and particulars.
16 I will not act on the respondents' submissions resting upon the distinction between material facts and particulars, which were misplaced. They were made in circumstances where the Court had invited the applicant to furnish some further particulars so as to give the respondents fair notice of his claim of indirect discrimination, which the Court considered had not been pleaded.
17 There is a more significant point that I invite the parties to address before I would permit the applicant to amend his pleadings further so as to introduce the allegation of indirect discrimination. Section 351 of the Fair Work Act, on which the applicant relies, provides -
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
18 There is an exception in s 351(2)(a) which provides -
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
…
19 The term "anti-discrimination law" is defined by s 351(3) of the Fair Work Act to include the Sex Discrimination Act 1984 (Cth). Section 5B of the Sex Discrimination Act defines the concept of discrimination on the ground of gender identity. However, s 7D(2) of the Sex Discrimination Act provides that a person does not discriminate against another person by taking special measures authorised by s 7D(1), which include taking special measures for the purpose of achieving equality between men and women.
20 In Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149 at [37]-[43] Crennan J considered the background context of s 7D, and extrinsic materials including in particular paragraph 1 of Article 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, which provides -
Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
21 Crennan J then stated at [44] -
A "special measure" as referred to in s 7D, and as construed by reference not only to the ordinary meaning of words repeated from the convention, but also by reference to the context, object and purpose of the convention is one which has as at least one of its purposes, achieving genuine equality between men and women. The phrase "special measure" is wide enough to include, what is known as, affirmative action.
22 Before I would permit the applicant to rely on what is alleged to be the first respondent's "Diversity and Inclusion" policy as a ground to allege that there was indirect discrimination against the applicant in contravention of s 351 of the Fair Work Act, I would need to be persuaded that there is a proper basis in fact and in law to make the allegations. Because of the way the proposed amendments have unfolded, which involved consideration by the Court on the papers with short written submissions in the context of a discovery dispute, there has not been an opportunity for the Court to have the parties address these matters directly.
23 Categories (d) to (f) do not relate to any issue that is currently pleaded by the parties. It is therefore unnecessary for me to consider the other objections to categories (d) to (f) which the respondents advanced.