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[2018] FCA 906
Federal Court of Australia
2018-06-15
Barker J
Original judgment source is linked above.
Solicitor for the Applicant: Allion Partners Pty Ltd
Solicitor for the Respondents: DLA Piper Australia
AND: THE UNIVERSITY OF NOTRE DAME AUSTRALIA First Respondent
JUDGE: BARKER J DATE OF ORDER: 15 JUNE 2018
In respect of the respondents' interlocutory application filed 2 October 2017:
BARKER J: 1 In this proceeding, by her originating application dated 4 April 2017, Ms Wendy Scapin seeks the following relief against the University of Notre Dame (UNDA) and Professor Selma Alliex: (1) Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that each of the respondents contravened ss 50, 340 and 351 of the Fair Work Act 2009 (Cth) (FW Act). (2) Pursuant to s 546 of the FW Act, a penalty to be imposed on each of the respondents for their contraventions of ss 50, 340 and 351 of the FW Act. (3) Pursuant to s 545 of the FW Act, an order that the respondents pay to Ms Scapin compensation for their contraventions of ss 50, 340 and 351 of the FW Act. (4) Pursuant to s 21 of the Federal Court of Australia Act, a declaration that the respondents contravened cll 8.3, 10.2.3 and 22 of The University of Notre Dame Australia Staff Enterprise Agreement 2011-2014 (Enterprise Agreement). (5) Damages for breach of UNDA's obligation to act in good faith. (6) Damages for breach of UNDA's statutory duty to provide and maintain a working environment in which Ms Scapin was not exposed to the hazards, imposed on UNDA by s 19 of the Occupational Safety and Health Act 1984 (WA) (OSH Act). (7) An order for interest on all payments ordered to be made in accordance with s 51A of the Federal Court of Australia Act, alternatively, s 547 of the FW Act from 31 December 2013 to the date of judgment. (8) The payments referred to in (2) to (7) above to be made to Ms Scapin within 14 days of the orders. (9) Costs. 2 By her further amended statement of claim dated 4 September 2017, Ms Scapin pleads out the basis upon which she claims such relief. The statement of claim is quite long and repetitive in parts. 3 The respondents have applied for various interlocutory orders, primarily in the nature of summary judgment, or alternatively to strike out and require Ms Scapin to replead in a satisfactory manner, in respect of parts of the statement of claim. 4 The various cause of action or pleading issues raised on behalf of the respondents are said to be pursued in an endeavour to meet the demand of s 37M of the Federal Court of Australia Act, namely, to reduce issues in litigation and so the costs of the proceeding, especially by avoiding the need to engage and call a range of expert witnesses at a trial. It is also said that if the Court makes the orders they seek unnecessary cross-examination will be avoided, as will the need to call numerous witnesses in respect of alleged "adverse action" claims. 5 While the objective of complying with s 37M is important, it is also well understood that summary judgment should not be entered unless there are no reasonable prospects of a claim succeeding. In that regard, I take note of and need not repeat the well-known authorities concerning the giving of summary judgment which have been cited by the parties in their written submissions, about which there is no issue.
Evidence 6 The following affidavits were read by counsel for the respondent: Ms Elizabeth Tacey Moran made 29 September 2017; and Ms Moran made 22 January 2018.
First ground of interlocutory application: breach of statutory duty pleading 7 Paragraphs [154]-[156] of the statement of claim plead as follows: Notre Dame's breach of statutory duty 154. By s 19 of the Occupational Safety and Health Act 1984 (WA), Notre Dame owed the applicant a duty to, so far as is practicable, provide and maintain a working environment in which the applicant was not exposed to hazards (Statutory Duty). 155. Notre Dame breached its statutory duty when the applicant suffered the 2012 Foot Injury and the Psychiatric Disease. 155A. But for the 2012 Foot Injury and the Psychiatric Disease, the Applicant: (a) would not have been the subject of the First, Second, Third, Fourth, Fifth and Sixth Adverse Action; (b) the Applicant would have had the opportunity of Continuing Employment pleaded in paragraph 119 above; and (c) had the opportunity of being able to properly perform her duties and of earning remuneration, and to advance her career otherwise. 156. The applicant suffered loss and damage because of Notre Dame's breach of its Statutory Duty. 8 The respondents submit that the damages claim that Ms Scapin wishes to pursue on this ground is barred by the operation of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act) and they should have summary judgment on this point. 9 The respondents formulate their analysis to support their submission in the following way: (1) This aspect of the application involves a simple proposition of law. Paragraphs [154]-[156] of the claim plead the existence and breach of a "statutory duty" under the OSH Act to "so far as is practicable, provide and maintain a working environment in which [Ms Scapin] was not exposed to hazards". (2) UNDA is alleged to have breached this statutory duty "when [Ms Scapin] suffered the 2012 Foot Injury and the Psychiatric Disease". That is to say, that she suffered these "injuries" because UNDA breached its statutory duty by failing to maintain a safe working environment. Loss and damage is claimed because of the alleged breach of statutory duty: [156] of the statement of claim. (3) The WCIM Act, not unlike other statutory workers' compensation schemes, provides for a regime which seeks to prevent "double dipping" by injured workers through the recovery of both statutory compensation payments and common law damages: see Loongana Lime Pty Ltd v Worth (2006) 203 FLR 268 at 278 [27]; [2006] WASCA 183. (4) Section 93B(1) of the WCIM Act provides that Div 2 of Pt IV of that Act applies to the awarding of damages against the employer independently of the Act "in respect of an injury suffered by a worker", if the injury was said to have been caused "by the negligence or other tort of the worker's employer" and compensation has been paid in respect of the injury under the Act. Section 93C of the WCIM Act provides that if the Division applies, a court is not to award damages contrary to the Division. (5) Within Div 2 of Pt IV of the WCIM Act is s 93K(4), which provides that damages in respect of an injury can only be awarded if various requirements are satisfied, including that the worker elects to retain the right to damages in the manner provided for in the WCIM Act. (6) The respondents do not understand it to be in dispute that Ms Scapin has been paid compensation under the WCIM Act in respect of the 2012 foot injury and the psychiatric disease and that no election under s 93K(4) of the Act has been made by Ms Scapin in respect of either injury: [16] of, and Annexure "ETM-8" to the Moran affidavit. (7) Accordingly, Ms Scapin is statute barred from claiming damages in these proceedings caused by the "negligence or other tort": which includes relevantly, a breach of statutory duty of the kind alleged: Transfield Pty Ltd v Rawstron [2005] WASCA 78 at [31]-[34]; Newcombe v AME Properties Ltd and Another (1995) 14 WAR 259 at 263; American Express Co v British Airways Board [1983] 1 WLR 701 at 708-9; Philip Morris Ltd v Ainley & Incorporated Nominal Defendant [1975] VR 345 at 348-9; Attorney-General v Kowalski [2014] SASC 1 at [849]; King v King (1920) 26 ALR 277; [1920] VLR 443; Lochgelly Iron and Coal Company Limited v M'Mullan [1934] AC 1 of UNDA, in respect of those injuries: St John of God Health Care Inc v Ausin (2004) 46 WAR 208 at [30]; [2014] WASCA 11. That, however, is the very thing which Ms Scapin seeks to do in [154]-[156] of the claim. (8) It is apparent from Annexure "ETM-8" to the Moran affidavit that Ms Scapin has attempted to avoid the operation of these provisions by seeking to characterise the damages claimed as being not "in respect of" the injuries. (9) Firstly, she particularises her loss by among other things, reference to [125], which itself particularises loss by reference to [58B], which pleads loss and damage because of the 2012 foot injury and the psychiatric disease. On the face of the pleading, damages are claimed in respect of these injuries. (10) Secondly, and more fundamentally, the "fiction" at [156] of the statement of claim cannot be divorced from [155A], which has the effect of explicitly alleging that the damages would not have been incurred but for the 2012 foot injury and the psychiatric disease. On her own case (which should be assumed to be true for the purposes of this application), there is a direct causal connection ("but for"), which clearly makes the damages claimed in [156] in respect of the 2012 foot injury and the psychiatric disease: Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 at [93]-[97]; [2015] WASCA 230; Education Department of Western Australia v Morgan [2000] WASCA 291. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, LexisNexis Australia, 2011) at pp 375-7; Herzfeld P, Prince T and Tully S, Interpretation and Use of Legal Sources - The Laws of Australia (Thomson Reuters, 2013) at pp 164-5. (11) For these reasons, the proceeding insofar as it alleges and claims damages for a breach of statutory duty in [154]-[156] of the statement of claim, should be summarily dismissed. 10 In the alternative to the summary judgment on this pleading, the respondents seek an order striking out the plea and granting leave to replead. 11 They argue that [155] of the statement of claim is hopelessly conclusory, embarrassing and does not disclose any cause of action. The UNDA has no idea of the case it is asked to meet or what it is alleged to have done (or not done) in breach of the alleged statutory duty. Thus, it should be struck out pursuant to R 16.21(1) of the Federal Court Rules 2011 (Cth). 12 Ms Scapin, in opposing these submissions of the respondents, says the respondents seem to challenge the jurisdiction and powers of this Court, under the Federal Court of Australia Act and the FW Act, to hear and determine the matter on the basis that the WCIM Act precludes the Court from doing so. 13 Ms Scapin submits that such a proposition raises a complex question of law involving s 109 of the Constitution (that requires that the respondents give notices under s 78B of the Judiciary Act 1903 (Cth), none of which have been given, as far as Ms Scapin is aware). Ms Scapin submits that the respondents' application is not a suitable vehicle for the determination of such a matter. This aspect of it should be dismissed for this reason. 14 Additionally, Ms Scapin says her case is that, but for the 2012 foot injury and the psychiatric disease (which, as apparent from [155] of the statement of claim, are the material facts relied upon by Ms Scapin for pleading a breach of UNDA of the statutory duty), Ms Scapin would not have suffered the consequences pleaded in [155A], particularised as the various adverse actions and the matters pleaded in [125]. 15 Ms Scapin submits that those are matters that are not in respect of the injuries suffered by Ms Scapin in the sense envisaged by the WCIM Act. Rather, they are matters arising under the FW Act. Accordingly, the WCIM Act does not impact on such matters. 16 Further, she says, a determination of such matters will require evidence. Accordingly, this aspect of the interlocutory application is premature, and it should be dismissed for this reason. 17 In my view, the primary submission of the respondent, on the summary judgment application, should be accepted. I do not see how Ms Scapin can have any reasonable prospect of pressing her claim on the basis that the breach of statutory duty question is not in respect of injuries suffered by her "in the sense envisaged by the WCIM Act", but are truly matters "arising under" the FW Act. 18 The breach of statutory duty is fairly and squarely pleaded by reference to s 19 of the WCIM Act, an Act of the State of Western Australia. The basis upon which damages are sought is entirely dependent on State law. It does not, as pleaded, have anything to do with the FW Act. No question of inconsistency between state and federal legislation, and so the operation of s 109 of the Constitution, arises. 19 To the extent that the pleaded 2012 foot injury and psychiatric disease are said to be relevant material facts for the purposes of pleading an "adverse action", I would allow leave to replead the adverse action plea involving these facts, if the applicant wishes to maintain any such claim. 20 I would therefore (1) strike out [154]-[156] of the statement of claim and [6] of the prayer for relief; and (2) give liberty to replead in relation to the adverse action pleas that involve the 2012 foot injury and psychiatric disease.
Second Ground of interlocutory application: breach of implied term of good faith 21 Paragraphs [145]-[150] of the statement of claim plead as follows: Breach of Implied Term of Good Faith 145. It was an implied term of the Second Three Year Agreement that the parties owed each other a duty to act fairly and in good faith in performance of their duties and in the exercise of their rights and performance of their obligations under the Second Three Year Employment Agreement, as between themselves (the Implied Term of Good Faith). Particulars The term was implied in that it: (a) was reasonable and equitable; (b) was necessary to give business efficacy to the Second Three Year Employment Agreement; (c) was so obvious that it goes without saying; (d) was capable of clear expression; and (e) did not contradict any express terms of the Second Three Year Employment Agreement. 146. By entering into clause 8.3 and 22 respectively of the Enterprise Agreement, Notre Dame represented to the Applicant that: (a) it would properly consider any Application for Conversion before it appointed another person to her position; (b) it would comply with clause 22 of the Enterprise Agreement in respect of any alleged unsatisfactory performance by the Applicant, (Notre Dame's representations) 147. Notre Dame's representations were false Particulars Notre Dame's contraventions of clause 8.3 and 22 of the Enterprise Agreement. 148. Notre Dame acted in a manner that was arbitrary, capricious, or unfair when it engaged in Notre Dame's contraventions of clause 8.3 and 22 of the Enterprise Agreement. 148A. Further and alternatively, Notre Dame acted in a manner that was arbitrary, capricious, or unfair when it: a) engaged in either one or more of the First, Second, Third, Fourth, Fifth and Sixth Adverse Action pleaded in paragraph 152 below; b) further and alternatively, repudiated the Second Three Year Employment Agreement as pleaded in paragraph 62A above. 149. By reason of the matters pleaded in one or both of the two preceding paragraphs, Notre Dame breached the Implied Term of Good Faith. 150. The Applicant suffered loss and damage because of Notre Dame's breach of the Implied Term of Good Faith. Particulars The Applicant repeats paragraph 125 above. 22 The respondents submit that general law, confirmed by recent authority, is such that a good faith claim cannot be sustained and has no reasonable prospects of success in this proceeding. 23 The respondents provide the following analysis in support of their submission for summary judgment: (1) Paragraphs [145]-[150] plead the existence and breach of an "implied term of good faith" under what is described as the second three year employment agreement: (particularised at [5(a)(iv)] of the statement of claim. The agreement is Annexure "ETM-11" to the Moran affidavit). (2) This claim's prospect of success, at the purely legal level, turns on the existence of the alleged implied term. There is no such term implied in law or in fact into contracts of employment. Ms Scapin has no prospects of successfully proving otherwise, such that summary judgment should be given in respect of this part of the proceeding. (3) The so-called "implied term of good faith" is alleged (at [145] of the statement of claim) as a "duty to act fairly and in good faith in performance of their duties and in the exercise of their rights and performance of their obligations". Correspondingly, the impugned conduct is characterised as acting "in a manner that was arbitrary, capricious, or unfair": (see [148] and [148A]). The particulars to [145] indicate that Ms Scapin seeks to imply the term in fact: (through the BP Refinery test set out in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [21]-[22]; [2014] HCA 32). (4) The established law in this Court is that an implied term of good faith of the kind alleged is not implied into contracts of employment, either in fact or law. This was the considered conclusion of Collier J very recently: (Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [217]-[226]. Whilst her Honour was prepared to accept that in an appropriate case such a term might be implied in fact, it is difficult to see how (or when) that might be so in light of her Honour's observations about "necessity"). This is consistent with similar holdings in Walker v Citigroup Global Markets Pty Ltd (formerly Saloman Smith Barney Australia Securities Pty Ltd) and Another (2005) 226 ALR 114 at [203]-[205]; [2005] FCA 1678 (Kenny J) and in Van Efferen v CMA Corporation Ltd (2015) 183 IR 319 at [79]-[85]; [2009] FCA 597 (Tracey J). See also Regulski v State of Victoria [2015] FCA 206 at [219] (Jessup J). Such a term fails the test of necessity (for implication in law or fact), even if one might think it reasonable. (5) As noted by Tracey J in Van Efferen, the Court as constituted should only depart from these considered pronouncements upon the question if satisfied that they are clearly or plainly wrong. Self-evidently, such a conclusion could not be reached. (6) For these reasons, the proceeding insofar as it alleges the existence and breach of an implied term of good faith ([145]-[150] of the statement of claim) should be summarily dismissed. 24 Alternatively, the respondents seek the strike out and repleading of [147], [148], [148A] and [149] of the statement of claim. They submit [147] of the statement of claim is conclusory and embarrassing, merely pleading a legal conclusion without any supporting material facts. Paragraphs [148] and [148A] of the statement of claim, they contend, are vague, ambiguous and prejudicial to UNDA and do not disclose any cause of action. It follows, they submit, that [149] of the statement of claim (which relies entirely on [148] and [148A]) should also be struck out and repleaded. 25 Ms Scapin contends, ultimately, that the question of good faith term should be resolved at trial in the light of evidence. Accordingly resolution at this interlocutory stage of the proceeding is premature and the Court should not stifle the development and proper consideration of the claim at this stage. 26 More particularly, Ms Scapin contends: (1) The respondents' assertion that the considered conclusion of Collier J in Whelan is that there is no term of good faith implied in law or in fact into contracts of employment in Australia does not reflect what was actually said by Collier J, who expressly recognised that such a term might be implied depending on the facts of a particular matter, especially where there is a significant disparity of power: Whelan at [224]-[226]. (2) Further: (a) Van Efferen was before the High Court's decision in Barker at [107] where the High Court left open the possibility of an implied term of good faith; and so cannot be regarded as authority for the proposition advanced by the respondents. (b) In any event, Tracey J's observations were obiter (Van Efferen at [80]) and were directed at the implied term of mutual trust and confidence rather than the implied term of good faith: [83]. (c) Kenny J in Walker seems to be discussing an implied term of good faith as a matter of law rather than as a matter of fact. (3) In light of the above, Ms Scapin submits that it cannot be said that the established law in this Court is that the implied term of good faith, that Ms Scapin contends for, cannot be implied in fact into contracts of employment in Australia. Therefore, the Court as currently constituted can make its own determination about the matter uninhibited by other decisions of the Federal Court. (4) Regardless, as Whelan and other decisions leave open the possibility of the implication of an implied term of good faith, (see Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL (Receivers and Managers Appointed) (Administrators Appointed) & Ors [2005] VSCA 228 at [4] and [25], cited at [226] in Whelan; and Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Another (2007) 69 NSWLR 198; [2007] NSWSC 104 at [136]-[128], cited at [79]-[85] in Van Efferen) Ms Scapin submits that such an issue is best determined at trial. The interlocutory application is unsuitable as a vehicle for a final determination of a matter of this importance, and this aspect of the interlocutory application should be dismissed for this reason. (5) Further and alternatively, Ms Scapin contends that whether such implied term of good faith can be implied into her contract of employment cannot properly be decided in an evidentiary vacuum, without a full hearing of all of the evidence. This includes evidence as to the totality of Ms Scapin's employment, for the purpose of determining, amongst other things, whether the implied term of good faith is necessary to give her contract of employment business efficacy, taking into account that the relevant business here involves an employment relationship, with the incidents that flow from such a relationship. (6) So for example, relevant evidence would include evidence of UNDA's business, the role that Ms Scapin played in that business and how she was expected to perform that role, UNDA's policies and procedures as applicable to her, the role and operation of the Enterprise Agreement made under legislation that seeks to provide a balanced framework for cooperative and productive workplace relations, (see s 3 of the FW Act) in the context of a framework that enables bargaining in good faith (s 171(a) of the FW Act) and Ms Scapin's interaction with her supervisors, colleagues and students and evidence of any significant disparity of power. (7) Such evidence would go to Ms Scapin's contention that, in all of the circumstances, the business efficacy of her contract would have been completely undermined if UNDA was able to act in a manner that was arbitrary or capricious or unfair in respect of matters such as cl 8.3 and cl 22 of the Enterprise Agreement, which are plainly of great significance to the parties. Thus, the implication of the implied term of good faith is, amongst other things, necessary for this reason. (8) Given the need for evidence, Ms Scapin submits that the interlocutory application is premature concerning this aspect of the statement of claim. It should be dismissed to this extent. 27 Counsel for the respondents in oral submissions at the hearing of the summary judgment application accepted there was a "slim argument" that the good faith implication might be open. 28 In my view, while Ms Scapin at trial may struggle to distinguish relevant authorities which suggest this cause of action is unsustainable, and a good faith term is not to be implied in law or fact into an employment contract, I am not satisfied I should condemn this claim to summary judgment at this stage of the proceeding. It should be finally determined at trial in light of other evidence. 29 The interlocutory application for summary judgment on this ground therefore fails. 30 However, I agree with the respondents' alternative claim that the pleading is embarrassing in the respects of which they complain. 31 I would therefore strike out [147], [148], [148A], and [149] of the statement of claim with liberty to replead.
Third ground of interlocutory APPLICATION: "ADVERSE ACTION" PLEAS 32 The statement of claim identifies and alleges six separate forms of "adverse action", by reference to the headings that immediately precede [68], [77], [90], [109], [137] and [151] of the statement of claim. By reference to [3] of the orders sought in the originating application and the manner in which the statement of claim is structured, the respondents contend here that Ms Scapin has "no reasonable prospect of success" with respect to the first five forms of alleged adverse action, apart from one aspect of the first adverse action pleaded at [69], relying on [45] of the statement of claim. 33 The respondents contend that the meaning of items 1(b) (including an employee in their employment) and 1(c) (altering the position of an employee to their prejudice) of s 342(1) of the FW Act is well-established, citing Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at [4]; [1998] HCA 30: … par (b) covers injury of any compensable kind; para (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question … 34 The respondents say that for the purposes of item 1(c), an employee's position can be prejudicially altered "even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical": Qantas Airways Ltd and Another v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [32]; [2012] FCAFC 63. 35 The respondents say further, that the particular adverse action relied upon must be an "overt act" by the employer, which overt act either injures the employee in their employment or alters the employee's position to their prejudice. Whether the employer's overt act injures the employee or prejudicially alters their position, is to be determined objectively. 36 The respondents first deal with [15]-[19] and [69] of the statement of claim. 37 Those paragraphs plead as follows: The Applicant's return to work 15. The Applicant returned to work on Tuesday, 31 July 2012. 16. On Friday, 6 September 2012, the Applicant attended a meeting with the Respondent's Pro-Vice Chancellor, Associate Professor Mark Tannock (Tannock), at Tannock's office at Notre Dame. 17. During such meeting: (a) the Applicant in substance said that, to date, neither her General Practitioner, one Dr Robert Noll, nor the Applicant had received a copy of a return to work program from Notre Dame; (b) Tannock in substance said that the Applicant had received no pastoral care from Notre Dame because of the 2012 Foot Injury and that there had been no clear process in the management of the First Workers' Compensation Claim by Notre Dame's employees. 18. Notre Dame failed to give the Applicant physical and emotional/mental support on her return to work and thereafter. Particulars Notre Dame failed: (a) to provide the Applicant with an accessible or adequate office; (b) to provide the Applicant with adequate assistance to carry teaching equipment to and from teaching venues; (c) to provide proper equipment to enable the Applicant to lecture students in lecture theatres; (d) to provide adequate transport to enable the Applicant to travel to and from Campus; (e) to make proper arrangements to enable the Applicant to attend staff meetings and activities; (f) to provide a proper return to work programme; (g) to provide or allow a proper rehabilitation provider; (h) to provide proper pastoral care; (i) to provide a process in the management of the First Workers Compensation Claim. 19. The Applicant suffered loss and damage because of the matters pleaded in the preceding paragraph. Particulars (a) The Applicant lost the opportunity and benefit of: i. being able to properly perform her duties; ii. being re-established as a settled member of the wage-earning workforce; (b) The Applicant suffered hurt, embarrassment and humiliation; (c) The matters pleaded in paragraph 18 above contributed to the Applicant developing the Psychiatric Disease pleaded in paragraph 56 below: see Scapin v University of Notre Dame Workers Compensation Arbitration Service A14791 and A16242 per Arbitrator Mengler at [158] and [159]. … 69. The matters pleaded in paragraphs 15 to 19, 20 to 27, 39 to 53, 56 and 61 to 63 above: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. 38 In respect of this part in the pleading, the respondents submit as follows: (1) Paragraph [69] of the statement of claim deals with the first form of alleged adverse action. Putting aside the ambiguity of the pleading itself, it can be seen there (including by reference to [70]) that [15]-[19] of the statement of claim are alleged to constitute "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. (2) The only conduct (or overt act) alleged in respect of UNDA in those paragraphs is in [17(b)]. On no view of the matters alleged in that paragraph, even if true, could Ms Scapin establish this conduct as adverse action. No attempt to plead or prove injury or prejudice arising from the comment is made. (3) Paragraph [18] of the statement of claim alleges omissions or failure to act on the part of UNDA. A failure to do something is not an "overt act" causing prejudice or legal injury. An employer cannot "take" adverse action (s 340(1)) constituted by an omission. When s 342(1) wants to refer to failures or refusals to do something, it does so expressly. Paragraph [18] cannot constitute "adverse action". 39 The respondents then turn to [20]-[27] and [69] of the statement of claim which are as follows: 20. On Monday, 9 September 2013, the Applicant received a letter from the Respondent's Vice Chancellor, Professor Celia Hammond (Hammond) that in substance congratulated the Applicant on being one of Notre Dame's top 10 nominees for UniJobs 2012 'Lecturer of the Year', a copy of which letter is available for inspection at the offices of the solicitors for the Applicant. 21. On Monday, 16 September 2013, Alliex sent an email to the Applicant that in substance proposed a meeting on 25 to 26 September 2013 to review her employment status (the Proposed Review Meeting) as the Second Three Year Employment Agreement was due to expire on 31 December 2013. A copy of such email is available for inspection at the offices of the solicitors of the Applicant. 22. On Tuesday, 17 September 2013, the Applicant emailed Alliex in substance expressing a preference not to meet on the suggested dates due to her work commitments. A copy of such email is available for inspection at the offices of the solicitors of the Applicant. 23. On Wednesday, 18 September 2013, on behalf of the Applicant, one Amy Talbot (Talbot), an Industrial Organiser with the National Tertiary Education Union (NTEU) emailed Alliex in substance requesting that she provide a description of the subject and nature of the discussion that she wished to have with the Applicant and advising that the Applicant would prefer that the Proposed Review Meeting be delayed until her marking and teaching priorities were finalised. A copy of such email is available for inspection at the offices of the solicitors of the Applicant. 24. On Thursday, 19 September 2013, Alliex emailed Talbot in substance stating that: (a) the purpose of the Proposed Review Meeting would not be to discuss conversion to continuing employment but would be a review of the Applicant's performance and conduct throughout the year; (b) would include feedback regarding alleged performance concerns and areas where she did not believe the Applicant was meeting the expectations of her role; (c) she was concerned that the 2012 Foot Injury was having an effect on her ability to meet the inherent requirements of her current role. A copy of such email is available for inspection at the offices of the solicitors of the Applicant. 25. Since the Applicant commenced employment with Notre Dame on 19 February 2007, up until 19 September 2013 when she received the email, there had been no complaints about her performance. 26. Neither the Second Three Year Employment Agreement nor The University of Notre Dame Australia Staff Enterprise Agreement 2011-2014 (the Enterprise Agreement) expressly provided for a review of the Applicant's performance and conduct throughout the year. 27. In the premises pleaded in paragraphs 20 to 26 above, the Applicant suffered loss and damage. Particulars a) The Applicant suffered hurt, embarrassment and humiliation. b) The premises pleaded contributed to the Applicant developing the Psychiatric Disease pleaded in paragraph 56 below: see Scapin v University of Notre Dame Workers Compensation Arbitration Service A14791 and A16242 per Arbitrator Mengler at [158] and [159] … 69. The matters pleaded in paragraphs 15 to 19, 20 to 27, 39 to 53, 56 and 61 to 63 above: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. 40 In respect of this part of the pleading, the respondents submit: (1) Similarly, [20]-[27] of the statement of claim are alleged to constitute "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. (2) Conduct of UNDA is found in [20], [21] and [24] of the statement of claim. Paragraph [22] and [23] of the statement of claim involve conduct by Ms Scapin (or her representatives), [25] of the statement of claim is an irrelevant allegation of fact not involving any conduct by UNDA and [26] involves asserted legal conclusions not involving any conduct by UNDA. (3) Paragraphs [20], [21] and [24] of the statement of claim allege the sending of three pieces of correspondence, found at Annexures "ETM-13", "ETM-14" and "ETM-15" to the Moran affidavit respectively. (4) It cannot seriously be contended that the correspondence at "ETM-13" and "ETM-14" constituted adverse action. This leaves "ETM-15", which speaks for itself. It is an explanation as to the purpose of a meeting the employer wanted to have with an employee. It is not remotely arguable that the sending of this email, of itself, injured Ms Scapin in her employment or prejudicially altered her position. Even assuming that Ms Scapin was hurt, embarrassed and humiliated by the receipt of the email, this is irrelevant: Arnett-Somerville v Monash Health [2016] FCA 1451 at [85]-[93]. 41 The respondents then turn to [39]-[44], [46]-[53] and [69] of the statement of claim which plead as follows: 24 September-29 October 2013: Application for Conversion 39. On Wednesday, 24 September 2013, the Applicant exercised her workplace right to apply for Continuing Employment under clause 8.3 of the Enterprise Agreement in accordance with the terms thereof (Application for Conversion). Particulars An email on 24 September 2013 from the Applicant to Fremantle Staffing Office, a copy of which is available for inspection at the offices of the Applicant's solicitors. 40. On Wednesday, 24 September 2013, Alliex sent a letter to the Applicant that in substance: (a) suggested postponing the Proposed Review Meeting to Thursday, 24 October 2013; (b) stated that she would provide an outline of alleged performance concerns about the Applicant shortly. A copy of the letter is available for inspection at the offices of the solicitors of the Applicant. 41. On Thursday, 25 September 2013, Talbot emailed Alliex, in substance requesting that the Proposed Review Meeting be re-scheduled for a time after 31 October 2013 because of the Applicant's work commitments. A copy of the email is available for inspection at the offices of the solicitors of the Applicant. 42. On Friday, 4 October 2013, Alliex sent a letter providing her assessment of the Applicant's performance (alleged performance concerns) and inviting the Applicant to make comments. A copy of the letter is available for inspection at the offices of the solicitors of the Applicant. 43. On Thursday, 24 October 2013, the Applicant received a Letter of Merit from Alliex, that in substance congratulated the Applicant on attaining Notre Dame's standard for commendatory teaching performance and acknowledged the Applicant's 'efforts and contribution to the [School of Nursing and Midwifery's] reputation for excellence in teaching and learning.' A copy of the letter is available for inspection at the offices of the solicitors of the Applicant. 44. On Friday, 25 October 2013, the Applicant sent an email to Alliex that in substance responded to the alleged performance concerns. A copy of the letter is available for inspection at the offices of the solicitors of the Applicant. … 46. Prior to receiving such letter from Yong: (a) the Proposed Review Meeting had not taken place; (b) the Applicant had not received any counselling by any staff member of the First Respondent in relation to any of the alleged performance concerns; (c) the Applicant had not been directed to undertake any action to attain the required standard of performance; (d) there had been no meeting between the Applicant and any more senior member of staff of the First Respondent to discuss any alleged unsatisfactory performance; (e) the Applicant had not been provided with evidence at any such meeting, including specific examples in writing, of the alleged unsatisfactory performance and the reasons why her performance was considered unsatisfactory; (f) the Applicant had not been given a proper opportunity to respond to such evidence and reasons; (g) there had been no, or no proper, consideration by a senior manager of the responses of the Applicant and any reasons or explanations put forward by her; (h) there had been no Performance Improvement Plan (PIP) developed in conjunction with the Applicant and any senior staff member of the Respondent; (i) the Applicant had not had the opportunity to achieve the required standard of performance in accordance with the PIP; (j) there had been no review meetings with the Applicant and any senior staff member of the Respondent; (k) there had been no completion of a specified review period and the Applicant had not been informed of whether there had been a satisfactory improvement in performance or not; (l) the matter of any alleged unsatisfactory performance of the Applicant had not been referred to Notre Dame's Vice Chancellor and no Senior Staff Member had been nominated to handle the matter; (m) no findings had been made by a Senior Staff Member on the matter; (n) the Applicant had not been informed of any such finding; (o) the Applicant had not had the opportunity to appeal any such findings. 47. On Tuesday, 29 October 2013, the Applicant, together with Talbot, met at the offices of the First Respondent with Alliex and one Sarah Chaney (Chaney), Notre Dame's Executive Director for Professional Standards and Conduct, to respond to the alleged performance concerns. 48. Notre Dame had already made the decision to refuse the Application for Conversion before the meeting was held. Particulars The Applicant repeats paragraph 45 above. 49. After about two hours, the meeting was ended by Alliex and Chaney with only approximately one third of the alleged performance concerns having been discussed. 50. There was: (a) no, or no proper, basis for the alleged performance concerns; (b) by reason of the matters pleaded in paragraph 46, 48 and 49 above, a failure by Notre Dame to afford procedural fairness to the Applicant in relation to its decision to refuse the Application for Conversion. 51. In the premises pleaded in paragraphs 20 to 29 and 39 to 50 above, the Applicant suffered loss and damage. Particulars (a) The Applicant suffered hurt, embarrassment and humiliation. (b) The premises pleaded contributed to the Applicant developing the Psychiatric Disease pleaded in paragraph 56 below: see Scapin v University of Notre Dame Workers Compensation Arbitration Service A14791 and A16242 per Arbitrator Mengler at [156], [158] and [159]. 6 November - 31 December 2013: further alleged performance concerns 52. On Wednesday, 6 November 2013, Chaney emailed the Applicant an 'updated' Annual Performance Review document that in substance: (a) stated that Alliex had felt it necessary to add further alleged performance concerns (further alleged performance concerns); and (b) requested that the Applicant provide additional responses to the information contained in the document by 19 November 2013. A copy of such letter is available for inspection at the offices of the solicitors of the Applicant. 53. In the circumstances pleaded in the preceding paragraph, the Applicant suffered loss and damage. Particulars (a) The Applicant suffered hurt, embarrassment and humiliation. (b) The circumstances pleaded contributed to the Applicant developing the Psychiatric Disease pleaded in paragraph 56 below: see Scapin v University of Notre Dame Workers Compensation Arbitration Service A14791 and A16242 per Arbitrator Mengler at [158] and [159]. … 69. The matters pleaded in paragraphs 15 to 19, 20 to 27, 39 to 53, 56 and 61 to 63 above: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. 42 The respondents contend that: (1) By the same pleading mechanism referred to above, [39]-[53] of the statement of claim are alleged to constitute "adverse action" within the meaning of (1)(b) and (1(c) of s 342(1) of the FW Act. (2) Conduct of the UNDA is found only in [40], [42], [43], [45], [49] and [52] of the statement of claim. Paragraphs [46] and [50] of the statement of claim allege, in part, omissions or failures on the part of UNDA which cannot constitute adverse action. (3) Paragraph [40], [42], [43] and [52] of the statement of claim are correspondence found at Annexures "ETM-16", "ETM-17", "ETM-18" and "ETM-20" to the Moran affidavit respectively. Obviously it will not be actually alleged that "ETM-18" is/was adverse action. Annexures "ETM-16", "ETM-17", "ETM-18" and "ETM-20" again speak for themselves. The "overt act" in each case is the sending of these letters/emails. (4) On the face of the statement of claim, Ms Scapin has no reasonable prospect of successfully arguing that the sending of these letters/emails legally injured her or prejudicially altered her position. The first reschedules a meeting, the second provided Professor Alliex's preliminary assessment of Ms Scapin's performance, including identifying some concerns and the third responds to a series of requests for information made by Ms Scapin (or her representative) and outlines some additional performance comments by Professor Alliex. (5) Again, even assuming that Ms Scapin was "distressed" about having been asked to attend a meeting (see the first paragraph of Annexure "ETM-16" to the Moran affidavit) or distressed or upset with Professor Alliex's comments, this is not relevant to whether the letters constitute adverse action. Nor is it relevant that Ms Scapin may have felt hurt, embarrassed or humiliated by anything UNDA did or did not do. (6) Paragraph [49] of the statement of claim alleges that the UNDA ended a meeting precipitously. This is not adverse action. 43 The respondents then turn to [56] and [69] of the statement of claim which plead: The Psychiatric Disease 56. Because of the 2012 Foot Injury and the circumstances pleaded in 15 to 19, 20 to 27 and 39 to 53 above, the Applicant suffered a psychiatric disease (the Psychiatric Disease). Particulars (a) Scapin v University of Notre Dame Workers Compensation Arbitration Service A14791 and A16242 per Arbitrator Mengler at [165]. (b) Further particulars will be provided prior to trial. … 69. The matters pleaded in paragraphs 15 to 19, 20 to 27, 39 to 53, 56 and 61 to 63 above: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. 44 The respondents submit that, similarly, [56] of the statement of claim is alleged to constitute "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. That paragraph alleges that Ms Scapin suffered a psychiatric disease. It involves no conduct of UNDA and this aspect of the proceeding should be summarily dismissed. 45 The respondents then turn to [61]-[63] and [69] of the statement of claim, which plead: December 2013: repudiation of Second Three Year Employment Agreement 61. In early December 2013, the Applicant's name was removed from Notre Dame's global email list for the School of Nursing and Midwifery. 62. On Saturday, 21 December 2013, when the Applicant attended Notre Dame's Campus to remove her belongings from her office, she found that such belongings had been removed from her office and placed in the corridor of the School of Nursing and Midwifery's building. 62A. By its conduct referred to in the two preceding paragraphs, the First Respondent evinced an intention to no longer perform the Second Three Year Employment Agreement. 63. In the premises pleaded in paragraphs 61 to 62A above, the Applicant suffered loss and damage. Particulars The Applicant suffered hurt, embarrassment and humiliation. … 69. The matters pleaded in paragraphs 15 to 19, 20 to 27, 39 to 53, 56 and 61 to 63 above: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. 46 The respondents submit that: (1) Similarly [61]-[63] of the statement of claim are alleged to constitute "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. (2) These paragraphs allege (in essence) the that UNDA removed Ms Scapin's name from an email list and moved some of her belongings from an office to a corridor and that she felt hurt, embarrassed or distressed as a result. For the reasons already given above, Ms Scapin has no reasonable prospect of successfully arguing that this conduct legally injured Ms Scapin or prejudicially altered her position. 47 The respondents then turn to [77]-[80], [82]-[83] and [138]-[139] of the statement of claim, which plead: The Second Adverse Action 77. On Wednesday, 29 August 2012 at Notre Dame's Campus, Alliex entered a room in which the Applicant was conducting a tutorial for approximately 23 students without knocking and without providing any prior notice to the Applicant. 78. In front of the students and within earshot of them, and without the consent of the Applicant, Alliex spoke with and disclosed personal information about the Applicant in relation to the First Workers' Compensation claim, in particular issues relating to the Applicant's travel to and from work. 79. Professor Alliex then handed the Applicant 18 taxi vouchers. 80. Professor Alliex's conduct pleaded in paragraphs 77 to 79 above (Alliex's conduct) constituted a breach of the Applicant's privacy. … 82. Alliex's conduct: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. Particulars The Applicant repeats the matters pleaded in the preceding paragraph. 83. Alliex's conduct constituted 'adverse action' taken by Notre Dame against the Applicant within the meaning of that term in item 1 of s 342(1) of the FW Act (the Second Adverse Action). … 138. Alliex's conduct and Alliex's further conduct: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. Particulars The Applicant repeats paragraph 132 above. 139. Alliex's conduct and Alliex's further conduct constituted 'adverse action' taken by Notre Dame against the Applicant within the meaning of that term in item 1 of s. 342(1) of the FW Act (the Fifth Adverse Action). Particulars The Applicant repeats the preceding paragraph. 48 The respondents submit: (1) Paragraph [82] of the statement of claim deals with the second form of alleged adverse action. It alleges, including by reference to [83] of the statement of claim, that UNDA's conduct alleged in [77]-[80] of the statement of claim constitutes "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. (2) Similarly, [138]-[139] of the statement of claim deal with the fifth form of alleged adverse action, by reference to "Alliex's conduct" and "Alliex's further conduct". Each of these are defined terms in the statement of claim itself, the former constituting [77]-[79] of the statement of claim (defined in [80] of the statement of claim) and the latter constituting [109] of the statement of claim (defined in [110] of the statement of claim). (3) The conduct involves entering a classroom without knocking, speaking within earshot of students about a workers' compensation claim and disclosing unidentified personal information and handing 18 taxi vouchers to Ms Scapin. It is alleged that this conduct hurt, embarrassed and humiliated Ms Scapin. Even assuming that it did, it is not relevant to whether the conduct is adverse action. (4) There is no basis on the pleading of the Court to conclude that any such conduct legally injured Ms Scapin or prejudicially altered her position. 49 The respondents then turn to [95]-[100] and [103]-[104] of the statement of claim, which plead: 95. As the Applicant was re-collating the examination papers, a male person, dressed in a suit, entered the venue, approached the Applicant and asked if she was 'Wendy'. 96. When the Applicant in substance confirmed her identity, the person in substance identified himself as Fabian D'Mello (D'Mello). 97. In front of and within earshot of students and Burg, and without the consent of the Applicant, D'Mello then disclosed personal information about the Applicant when he began questioning her in relation to the First Workers Compensation Claim. 98. Further, D'Mello disclosed personal information about the Applicant when he in substance questioned the Applicant on why she was standing on her foot, to which Burg in substance responded that the Applicant had been sitting down for the entire examination period and the Applicant in substance responded that she had been on her foot while travelling to and from the University, while fulfilling her teaching commitments for the past semester, and that she had been medically cleared to attend the examination. 98A. D'Mello continued his questioning, reiterated words to the effect that the Applicant should not be standing on her foot and should not have attended the examination that morning, and indicated that Notre Dame could choose her own rehabilitation provider. 99. On leaving the examination venue to return to her office, three third year students, whose identities are unknown, approached the Applicant and in substance said that D'Mello was observing the Applicant from a distance and was writing notes. 100. D'Mello's conduct pleaded in paragraphs [95] to [99] above (D'Mello's conduct) constituted a breach of the Applicant's privacy. … 103. D'Mello's conduct: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. Particulars The Applicant repeats the matters pleaded in the preceding paragraph. 104. D'Mello's conduct constituted 'adverse action' taken by Notre Dame against the Applicant within the meaning of that term in item 1 of s. 342(1) of the FW Act (the Third Adverse Action). 50 The respondents submit: (1) Paragraph [103] of the statement of claim deals with the third form of alleged adverse action. It alleges, including by reference to [104] of the statement of claim, that "D'Mello's conduct" constitutes "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. "D'Mello's conduct" is a defined term in the statement of claim, constituting [95]-[99] of the statement of claim (defined in [100] of the statement of claim). (2) It will not be seriously suggested that the conduct in [95] or [96] of the statement of claim constitutes adverse action. Paragraph [99] of the statement of claim does not involve any conduct by UNDA. This leaves [97], [98] and [98A]. Paragraph [97] of the statement of claim, as vague as it is, goes no further than [78] of the statement of claim, dealt with above. (3) Paragraph [98] of the statement of claim alleges that Mr D'Mello asked Ms Scapin why she was standing. Paragraph [98A] of the statement of claim alleges unidentified questioning and further alleges comments about Ms Scapin standing and attending the examination. It cannot seriously be contended that any of this conduct constituted adverse action. 51 Finally the respondents turn to [109], [111]-[112] and [138]-[139] of the statement of claim, which plead: The Fourth Adverse Action: Alliex's Disclosure of Personal Information 109. On Tuesday, 13 August 2013, while the Applicant was setting up for a lecture at Notre Dame's Fremantle Campus, without any prior notice to the Applicant and without her consent, Alliex entered the lecture theatre and disclosed personal information about the Applicant when she in substance questioned the Applicant in relation to the First Workers' Compensation claim and in relation to a copyright issue regarding running another unit taught by the Applicant at the Notre Dame Fremantle Campus, in the presence of and within earshot of approximately 15 students at the font of the lecture theatre, whose identities are unknown. … 111. Alliex's further conduct: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. Particulars The Applicant repeats the matters pleaded in the preceding paragraph. 112. Alliex's further conduct constituted 'adverse action' taken by Notre Dame against the Applicant within the meaning of that term in item 1 of s. 342(1) of the FW Act (the Fourth Adverse Action). … 138. Alliex's conduct and Alliex's further conduct: (a) injured the Applicant in her employment; (b) further and alternatively, prejudiced the Applicant in her employment. Particulars The Applicant repeats paragraph 132 above. 139. Alliex's conduct and Alliex's further conduct constituted 'adverse action' taken by Notre Dame against the Applicant within the meaning of that term in item 1 of s. 342(1) of the FW Act (the Fifth Adverse Action). Particulars The Applicant repeats the preceding paragraph. 52 The respondents submit: (1) Paragraph [111] of the statement of claim deals with the fourth form of alleged adverse action. It alleges, including by reference to [112] of the statement of claim, that "Alliex's further conduct" constitutes "adverse action" within the meaning of items 1(b) and 1(c) of s 342(1) of the FW Act. (2) Similarly, [138]-[139] of the statement of claim deal with the fifth form of alleged adverse action, by reference to "Alliex's conduct" and "Alliex's further conduct". The latter is a defined term in the statement of claim, constituting [109] of the statement of claim (defined in [110] of the statement of claim). (3) Paragraph [109] of the statement of claim alleges conduct that does not go beyond [77]-[78] if the statement of claim, dealt with above. 53 In the alternative, the respondents contend that in [18] of the statement of claim, Ms Scapin misunderstands the difference between material facts and particulars: [18] is a conclusion, supported by a list of vague and ambiguous "Particulars". The "Particulars" should be alleged as material facts, proper particulars of those should be provided and then, by reasons of those facts, the conclusion in [18] can then be alleged. 54 The respondents say they do not need to plead particulars and a bare denial in response to [18] will assist neither party, nor the Court, in properly identifying and joining issues. 55 As to [46] of the statement of claim, the respondents contend it lacks any apparent relevance, but in any event is expressed at such a conclusory level of generality that it is evasive, ambiguous and vague such that the respondents do not know how or why they ought respond. 56 They say [50] of the statement of claim has parallels with [147] of the statement of claim and its relevance is also not apparent. 57 The respondents say [69] of the statement of claim is impossibly vague and ambiguous. The respondents question whether it alleges that all of the conduct identified in all of the paragraphs set out therein collectively constituted the "First Adverse Action", ([70] of the statement of claim supports this construction), or alleges that the conduct in each individual paragraph listed therein constitutes "adverse action" or is it some unidentified combination of the two. It is impossible to respond to, they say, especially when regard is had to [71] of the statement of claim (reasons for "the First Adverse Action"). 58 Paragraphs [80] and [100] of the statement of claim the respondents contend, are also embarrassing and prejudicial. They do not disclose or pursue any cause of action in the statement of claim (for which any form of relief is sought), nor any cause of action known to law. The respondents should not need to be diverted by, and waste time and money responding to, these allegations. 59 The respondents contend [82], [103], [111] and [138] of the statement of claim suffer the same defect as [69] of the statement of claim. 60 Ms Scapin firstly submits that an adverse action does not necessarily need to be an "overt" act. Broadly, it is submitted that any omission is underpinned by the decision to omit and such a decision, of itself, can in any event be characterised as an overt act. More directly, Ms Scapin submits that having regard to the definition of the word "action" in s 12 of the FW Act, which provides that "action includes an omission", the concept of "overt act" needs to be approached carefully. 61 As to [69] of the statement of claim, Ms Scapin says it pleads five aspects that "taken together" are alleged to have injured her in her employment, or alternatively altered her position to her prejudice. It is said that this flows from the use of the word "and" in [69]. Each of the various paragraphs relied upon in [69] are to be considered together, as a course of conduct, rather than separately in the manner analysed by the respondents. 62 In these circumstances, understanding that the word "action" can include omissions, where [69] pleads a failure by UNDA, Ms Scapin contends her pleading is implicitly underpinned by decisions that were made (albeit by persons unknown to Ms Scapin at this stage). 63 Ms Scapin says that, just as evidence will be necessary for the determination of the existence of the good faith term, she submits that evidence will be necessary to determine whether the action pleaded in [69] (including omissions) did injure her in her employment or altered her position to her prejudice. 64 This, she says, raises matters of fact which should not be determined in an evidentiary vacuum at this early pleading stage of the proceeding. 65 As to [15]-[19] and [69] of the statement of claim, Ms Scapin directly submits that: (1) UNDA's omission, taken together with the other action pleaded in [69] of statement of claim, rendered her less capable of being properly rehabilitated and, therefore, fit to work as she had done prior to the injury. That action injured her in her employment; there was an adverse action. Further and alternatively, it prejudicially altered her position in her employment as it was an adverse affection or deterioration of the advantages that she enjoyed before, in that her reduced capacity to perform her work properly rendered her more exposed to criticism, and therefore lessened the security of her employment. (2) She has reasonable prospects of succeeding in this regard and, so, this aspect of the interlocutory application should be dismissed accordingly. 66 In relation to [20]-[27] and [69] of the statement of claim Ms Scapin submits: (1) The statement of claim in effect plead that she suffered loss and damage because of the actions of UNDA in reviewing her employment status by reference to her performance and conduct, in circumstances where the Enterprise Agreement, which is detailed in relation to matters of performance, made no provision for such a review. (2) Taken together with the other action pleaded in [69] of the statement of claim, that action injured her in her employment, in that it was adverse action. Further and alternatively, it prejudicially altered her position in her employment as it was an adverse affection or deterioration in the advantages that she enjoyed before in that it lessened the security of her employment, given the potential for action to be taken against her in the event of a negative performance review. As such, this aspect of the interlocutory application should be dismissed. 67 In relation to [39]-[44], [46]-[53] and [69] of the statement of claim Ms Scapin submits: (1) Paragraphs [39]-[44] and [45]-[53] of the statement of claim continue the theme established by [20]-[27] of the statement of claim, namely, that UNDA purported to review her employment by reference to her performance and conduct, in circumstances where her performance had been exemplary and where the Enterprise Agreement made no provision of such a review; and then refused to convert her employment to continuous employment. (2) Such action, taken together with the other matters pleaded in [69] of the statement of claim, lessened the security of her employment as evidenced by the fact that it, ultimately, resulted in her employment coming to an end. Consequently, such action injured her in her employment or altered her position to her prejudice. This aspect of the interlocutory application should be dismissed for this reason. 68 In relation to [56] and [69] of the statement of claim, Ms Scapin submits that: (1) Paragraph [56] of the statement of claim pleads that the circumstances in [15]-[19], [20]-[27] and [39]-[53] of the statement of claim caused her loss and damage. For the reasons already submitted in respect of those paragraphs, this aspect of the interlocutory application should be dismissed. 69 In respect of [61]-[63] and [69] of the statement of claim, Ms Scapin submits: (1) Paragraphs [61]-[63] of the statement of claim in effect allege that she suffered loss and damage because, by its conduct, UNDA evinced an intention to no longer perform her employment contract with UNDA. (2) Such conduct injured her in her employment or altered it to her prejudice in that it constituted repudiation by UNDA of her contract of employment. Accordingly, this aspect of the interlocutory application should be dismissed. 70 In respect of [77]-[80], [82]-[83] and [138]-[139] of the statement of claim, Ms Scapin submits in respect of the second and fifth adverse actions pleaded: (1) Accepting the facts as pleaded, in the context of the evidence as a whole, her case here is that Professor Alliex's conduct and further conduct injured her in her employment, and prejudicially altered her position in that it lessened her status in the eyes of those who perceived it. (2) In the absence of evidence, she submits that the interlocutory application is premature. Accordingly, this aspect of the interlocutory application should be dismissed. 71 In respect of [95]-[100] and [103]-[104] of the statement of claim, in respect of the third adverse action pleaded, Ms Scapin submits: (1) The assertion at [55] of UNDA's submissions that [99] of the statement of claim does not involve any conduct by UNDA overlooks [101] of the statement of claim, which must be accepted for the purposes of the interlocutory application. (2) Bearing that in mind, when considered in the context of the evidence as a whole, Mr D'Mello's conduct could have potentially injured her in her employment or altered her position to her prejudice in that it lessened her status in the eyes of those who observed it. Further, Mr D'Mello's conduct is not what could be expected vis-à-vis an employee in good standing and, so, evidences that her status had already been altered to her prejudice in that someone on behalf of UNDA (as yet unknown to her) instructed Mr D'Mello to engage in such conduct. (3) In the absence of hearing the evidence, the interlocutory application is premature. For the reasons above, this aspect of the interlocutory application should be dismissed. 72 In respect of [109], [111]-[112] and [138]-[139] of the statement of claim, in respect of the fourth and fifth adverse action claims, Ms Scapin submits that [58]-[61] of the respondents' submissions address the fourth and fifth form of alleged adverse action by reference to Professor Alliex's conduct and further conduct. For the reasons already submitted in relation to such conduct, Ms Scapin says that this aspect of the interlocutory application should be dismissed. 73 In oral submissions concerning the nature of the adverse action cases that Ms Scapin has pleaded, following discussion between her counsel and the Court about the need for the pleading clearly to identify what is pleaded to be adverse action and the need to distinguish that part of the pleading that deals with background or context from that which enables the reader properly to identify the precise adverse actions, counsel said that at the heart of the case was Ms Scapin's complaint about the application for conversion, which is intended to be pleaded on different levels. Counsel said it was important at the level of being a contravention of the Enterprise Agreement - something not challenged on the summary judgment application. At other levels, counsel said that the separate series of paragraphs, the subject of the respondents' challenge, are intended cumulatively to support the plea of the first adverse action in [69] of the statement of claim; and "an inference" from the evidence that there was a prejudicial alteration or injury to Ms Scapin's employment. Counsel accepted that if that proposition had not been put clearly enough then repleading might be necessary to avoid a debate about what matters truly are in issue at the commencement of the trial. 74 Counsel said the intention of the pleading was that, having pleaded [7] and following, taking into account all the various incidents, episodes and the overall context, [69] pleaded that, taken together, there was an injury in employment and prejudicial alteration. 75 Counsel repeated the submission that the pleading endeavoured to lay the ground for a submission that inferences of injury or prejudicial alteration are open. 76 Further questions were addressed by counsel for Ms Scapin concerning the linkage between [109] and [110], on the one hand, and [100] on the other. Counsel said the express reference in [100] to the conduct pleaded in [95]-[99] provided the linkage. He indicated, so far as a "privacy" reference in the pleading was concerned, that there was no attempt to plead a breach of privacy or a breach of personal information as a separate cause of action. Ms Scapin simply intended to plead further conduct which, on her case, caused injury to employment or prejudicial alteration to her position. 77 There was further discussion about the pleading concerning the alleged involvement of Professor Alliex in the conduct of UNDA, that Ms Scapin's plea makes concerning the type of knowledge that the Professor had. 78 Additionally, there was a discussion about a plea concerning procedural fairness. In relation to that, counsel said that the pleading was intended to mean no more than, in the circumstances, Ms Scapin did not have an adequate opportunity for a proper performance process as prescribed under the Enterprise Agreement, and that that plea fed into other pleas later in the statement of claim concerning contravention of cl 22 of the Enterprise Agreement which addresses matters such as performance. 79 Counsel for the respondents submitted that if Ms Scapin wished to run her case on the basis that the refusal to convert was adverse action then she should do so. If she wanted to say that it is adverse action because it had a particular effect on her employment, she should do so. If she wants to rely on other paragraphs in the statement of claim which support that conclusion, that it had the pleaded effect on her employment, then she should do so. The respondents' complaint is that the factual adverse action plea does not adequately arise from the current pleading. 80 In my view, there is substance in the objection by the respondents to the clarity of the pleading such that it is embarrassing in relation to the adverse action claims. 81 I am of the view, having regard to the exchange between counsel for Ms Scapin and myself at the interlocutory hearing, that the whole of the adverse actions claims should be repleaded. I do not think it is a desirable course simply to identify some of the paragraphs of the pleading in this regard. That would invite some tinkering with the pleading, rather than a wholesale reconsideration of how the adverse action claims are to be pleaded. 82 I therefore would strike out the following paragraphs of the statement of claim: (1) [15]-[19]; (2) [20]-[27]; (3) [39]-[44], [46]-[53]; (4) [56]; (5) [61]-[63]; (6) [69]; (7) [77]-[80], [82]-[83]; (8) [95]-[100] and [103]-[104]; and (9) [109], [111]-[112] and [138]-[139], with liberty to replead generally in respect of the allegations of adverse actions by the filing and service of a second further amended statement of claim by 20 July 2018. 83 As a result, it is unnecessary (as it is difficult) to rule on the respondents' contentions that the pleadings currently fail to identify actions (whether acts or omissions) that may arguably constitute adverse actions as defined by the FW Act. 84 I would expect that following a repleading of these adverse action claims, the acts or omissions which are said to constitute an adverse action will be clearly pleaded. 85 Broadly speaking, it follows that I have accepted the substance of the respondents' objections to the various paragraphs that I have struck out.
Paragraph [7] of the interlocutory application - other strike out issues 86 The respondents submit there remains a large number of paragraphs in the statement of claim which ought be struck out, which do not directly relate to the summary judgment matters, as follows: Paragraph [71(b)], tied as it is to [69]-[70] of the statement of claim, is embarrassing and vexatious. It either wholly (or in part) alleges that the "First Adverse Action" was taken because of the exercise of a workplace right under cl 8.3 of the Enterprise Agreement. Paragraph [39] of the statement of claim alleges that this workplace right was exercised on 24 September 2013. The events alleged in [15]-[19] and [20]-[27] of the statement of claim occurred before that time. Those events, to the extent they are alleged to constitute the (or part of the) adverse action, could not have been taken for this alleged reason. The paragraph should be struck-out. The same problem affects [84(b)], [105(b)] and [113(b)] of the statement of claim. The "Second Adverse Action" is defined as Professor Alliex's conduct in [77]-[79] of the statement of claim, which occurred on 29 August 2012, over a year before the alleged exercise of the workplace right said to be a reason for it. The "Third Adverse Action" is defined as Mr D'Mello's conduct in [95]-[99] of the statement of claim, which occurred on 4 October 2012, almost a year before the alleged exercise of the workplace right said to be a reason for it. The "Fourth Adverse Action" is defined as Professor Alliex's further conduct in [109] of the statement of claim, which occurred on 13 August 2013, over a month before the alleged exercise of the workplace right said to be a reason for it. Each of these allegations are vexatious and should be struck-out. Paragraphs [74]-[75], [87]-[88], [116]-[117], [126]-[127], [134]-[135], [142]-[143] and [153C]-[153D] of the statement of claim all suffer from the same defect. They each allege that Professor Alliex was "involved in" various contraventions of the FW Act by UNDA, within the meaning of s 550 of the FW Act. Each pleading is hopelessly conclusory, does not identify what conduct in s 550(2) of the FW Act Professor Alliex is said to have engaged in and does not plead the material facts of any of the matters identified in s 550(2) of the FW Act. No conduct (or omission) amounting to "intentional participation" in any contravention is alleged and nowhere is it alleged what the essential elements of each contravention are and that Professor Alliex had actual knowledge of each of those elements, with proper particulars supporting those allegations of knowledge (R 16.43 of the Rules (see [89]). Paragraphs [105(c)] and [113(c)] of the statement of claim contain a minor deficiency necessitating their amendment. They each allege the taking of adverse action because of the exercise of a workplace right to make a claim under the WCIM Act. The statement of claim however alleges two such exercises of a workplace right, one on 7 June 2012 in respect of the 2012 foot injury and one on 15 November 2013 in respect of the psychiatric disease. The second such claim occurred after the adverse action alleged referable to [105(c)] and [113(c)] (4 October 2012 and 13 August 2013 respectively), thereby suffering the same deficiency as discussed above. A similar pleading mechanism is employed in [71(c)], [84(c)] and [153(c)] of the statement of claim, but in each case, the exercise of the workplace right is limited to the claim in respect of the 2012 foot injury (thereby avoiding the defect). That same limitation is not alleged in [105(c)] and [113(c)] of the statement of claim and those paragraphs should be struck out with leave to replead. This leaves [130] of the statement of claim, which is wholly conclusory, does not plead any relevant material facts said to constitute the "failure to comply" and suffers from similar defects to those identified above. 87 As to these objections, Ms Scapin submits: [75]-[77] of the Respondents' Submissions re [71(b)], [84(b)], [105(b)] and [113(b)] of the [statement of claim] 62. The workplace right referred to in [71(b)] of the [statement of claim is the same workplace right that the applicant exercised in her application for conversion: defined in [39] of the [statement of claim]. As already submitted, the First Adverse Action pleaded in [69] of the [statement of claim] is all of the action identified therein. 63. Some or all of that action could have been taken for any one or more reasons. Bearing this in mind, [71(b)] pleads that the First Adverse Action was taken because of the applicant had her workplace right to apply for Continuing Employment under clause 8.3 of the Enterprise Agreement, a right that she had from the start. [71(b)] pleads that, further and alternatively, the First Adverse Action was taken because the applicant exercised her workplace right to apply for Continuing Employment under clause 8.3 of the Enterprise Agreement. 64. The fact that the applicant did not exercise such a right until 24 September 2013 (see [39 of the [statement of claim]), after the events pleaded in [15]-[19] and [20]-[27] of the [statement of claim] simply means that this further and alternative plea in [71(b)] must be read as not applying to those events. As such, [71(b)1] is not embarrassing or vexatious. Similarly, [84(b)], [105(b)] and [113(b)] are not embarrassing or vexatious. [78] of the Respondents' Submissions re [74]-[75], [87]-[88], [116]-[117], [126]-[127], [142]-[143] and [153C]-[153D] of the [statement of claim] 65. The conduct relied on by the applicant in respect of the involvement of the second respondent is particularised in each of the paragraphs in question. Those particulars need to be read as a whole. 66. The applicant relies on the inference to be drawn from particulars that the second respondent intentionally participated in and had knowledge of the essential elements of alleged contraventions. The applicant submits that the particular type of involvement set out in s 550(2)(a)-(d) is a matter of evidence and it is not necessary for the applicant to plead a particular paragraph of s 550(2) as a material fact. 67. The respondents did not request any particulars by reference to s 550(2)(a) - (d) before pleading to the equivalent paragraphs in [76]-[77], [88]-[89], [120]-[121], [130]-[131], [146]- [147] and [160]-[161] of the Defence to the [statement of claim]. If such particulars are now required, they can be provided. Accordingly, the applicant submits that the paragraphs in question should not be struck out. The interlocutory application should be dismissed to this extent. [80]-[82] of the Respondents' Submissions re [105(c)] and [113(c)] of the [statement of claim] 68. As is evident from the limitation to [71(c)], [84(c)] and [153(c)] of the [statement of claim], [105(c)] and [113(c)] should be read as being limited to the 2012 Foot Injury. With this clarification, which can if necessary be formalised by way of further particulars, the applicant submits that these paragraphs of the [statement of claim] should not be struck out. [83] of the Respondents' Submissions re [130] of the [statement of claim] 69. [130] of the [statement of claim] pleads that Notre Dame failed to comply with a clause in the Enterprise Agreement. That is supported by particulars of the conduct relied upon for the plea. As such, [130] pleads a fact that is material to the subsequent plea in [131] that such failure contravened the Enterprise Agreement, and is not conclusory. 88 Most of these objections are affected by the strike out and repleading order that I have made in respect of the adverse actions and so it is unnecessary for me to deal with these matters any further.
Proposed splitting orders 89 The respondents seek a formal "splitting order" pursuant to R 30.01 of the Rules. 90 Ms Scapin opposes the making of a splitting order and says there would be a significant link between many of the causes of action and the loss and damage alleged to have been suffered so it would be unwise to split the question of liability from the question of damages in this case. 91 In my view, it is inappropriate, in the circumstances of this litigation to make a splitting order such that the question of liability is dealt with separately from the question of the consequential orders and any orders for compensation. 92 There are at least two reasons for this. The first is that I consider it may well turn out to be difficult to separate out the evidence going to questions of liability from evidence going to the question of the consequences of a liability finding. The second is that I consider it will advance the efficient conduct of this litigation, in accordance with s 37M of the Federal Court of Australia Act, for all matters to be dealt with at once, rather than the proceeding be broken down into two potentially lengthy pieces of litigation separated by a potentially large gap in time. 93 Accordingly, the application for a splitting order is refused.
Conclusion and orders 94 The Court orders in respect of the respondents' interlocutory application filed 2 October 2017: (1) As to [1] and [4]: (a) [154]-[156] of the further amended statement of claim dated 4 September 2017 and [6] of the prayer for relief of the originating application dated 4 April 2017 be struck out. (b) There be liberty to replead in relation to the adverse action claim, if desired, that involves the 2012 foot injury and psychiatric disease. (2) As to [2] and [5]: (a) [147], [148], [148A] and [149] of the further amended statement of claim be struck out with liberty to replead. (3) As to [3] and [6]: (a) [15] [19]; (b) [20] [27]; (c) [39]-[44], [46]-[53]; (d) [56]; (e) [61]-[63]; (f) [69]; (g) [77]-[80], [82]-[83]; (h) [95]-[100] and [103]-[104]; and (i) [109], [111]-[112] and [138]-[139], of the further amended statement of claim be struck out with liberty to replead generally in respect of the allegations of adverse actions. (4) Any repleading in accordance with orders (1), (2) and (3) be by way of the filing and service of a second further amended statement of claim by 20 July 2018. (5) The interlocutory application otherwise be dismissed. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Scapin
The University of Notre Dame Australia
[2014] SASC 1
[2014] HCA 32
[2000] WASCA 291
[2005] VSCA 228
[2006] WASCA 183
[2015] WASCA 230
[2014] WASCA 11
[2005] WASCA 78
(2014) 253 CLR 169
(1920) 26 ALR 277
(2006) 203 FLR 268
(2015) 49 WAR 243
(1995) 14 WAR 259
(1998) 195 CLR 1
(2012) 202 FCR 244
(2007) 69 NSWLR 198
(2004) 46 WAR 208
(2015) 183 IR 319
(2005) 226 ALR 114