The general state of the pleadings
37The second ground of the application complains of the way in which the plaintiff's claim is pleaded generally. Rule 13.4 of the Uniform Civil Procedure Rules 2005 ("the Rules") is as follows -
"(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
38Rule 14.28 is as follows -
"(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
39I gratefully adopt statements made by Johnson J as to the principles concerning pleadings. In McGuirk v The University of New South Wales [2009] NSWSC 1424 his Honour said this -
"[21] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 296 and 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] 148 CLR 658 at 664; Banque Commerciale at 296.
[22] In Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.
...
[24] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005.
[25] Where application is made by a party for leave to amend pleadings, the court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.
[26] The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].
[27] For a Statement of Claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: r 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: r 14.8 UCPR."
40Dealing with embarrassing pleading his Honour said this -
"[30] A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70; Gunns Ltd v Marr at [14]-[15].
[31] In Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:
Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.
[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, BC9504276 at 5-6).
...
[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976; Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186.
[35] It is not the function of the court to draw or settle a party's pleading. The court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87-88 and 97-98; Gunns Ltd v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55]."
41The plaintiff's claim in contract is set out in paras 87-95 of the pleading, thus -
"During the Plaintiffs employment
87. The terms under which the Plaintiff was employed by the Defendant were unequivocally and unambiguously express by statute.
Particulars
See paragraphs 5 to 7.
88. By reason of the conduct pleaded at paragraphs 15 to 86 above, the Defendant held a contumelious disregard for, and breached the terms and conditions of the Plaintiffs statutory contract, including the following provisions:
ATO (General Employees) Agreement 2004: certified on 1 July 2004
(a) Sub-clauses 110.3,110.4 and 110.8, pertaining to 'Automated Employee Monitoring';
(b) Sub-clause 118.1 pertaining to the ' Code of Conduct';
(c) Sub-clauses 119.1, 119.2 and 119.6 pertaining to 'Anti-Discrimination';
(d) Sub-clauses 120.1, 120.3 and 120.4 pertaining to 'Workplace Diversity';
(e) Sub-clauses 121.1 and 121. 2 pertaining to 'Occupational Health and Safety (OH&S)';
Public Service Act 1999
'-SECT 10 APS Values'
(f) The APS Value at paragraph 10(l)(c) providing for a discrimination-free workplace;
(g) The APS Value at paragraph 10(l)(d) proclaiming that the APS 'has the highest ethical standards';
(h) The APS Value at paragraph 10(l)(h) proclaiming that the APS 'has leadership of the highest quality';
(i) The APS Value at paragraph 10(l)(j) proclaiming that the APS 'provides a fair, flexible, safe and, rewarding workplace';
' -SECT 13 APS Code of Conduct'
(j) The APS Code of Conduct at subsection 13(1) directing employees to 'behave honestly and with integrity';
(k) The APS Code of Conduct at subsection 13(3) directing employees to 'treat everyone with respect and courtesy, and without harassment';
(1) The APS Code of Conduct at subsection 13(4) directing employees to 'comply with all applicable Australian laws';
(m) The APS Code of Conduct at subsection 13(9) directing employees not to engage in 'false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment';
(n) The APS Code of Conduct at paragraph 13(10)(b) directing employees not to 'make improper use of: the employee's duties, status, power or authority' for a 'benefit or advantage for the employee or for any other person';
(o) The APS Code of Conduct at subsection 13(11) directing employees to engage in behaviour which 'upholds the APS Values and the integrity and good reputation of the APS';
Safety, Rehabilitation and Compensation Act 1988 ("SRC Act")
(p) Section 41 of the SRC Act, pertaining to the rehabilitation obligations of the ATO, as employer and post-employment (under incapacity).
See paragraph 106.
89. By reason of the Defendant's repeated, deliberate breach of contract, the Plaintiff suffered loss and damage.
...
After cessation of the Plaintiffs employment
90. After cessation of the Plaintiffs employment with the Defendant (22 November 2004), until all Comcare benefits ceased on 23 November 2006, she was still considered an employee at all
material times (pursuant to paragraph 5(4)(b) of the SRC Act.
91. By reason, the Defendant held jurisdiction over the Plaintiffs rehabilitation (as 'rehabilitation authority'), pursuant to section 4(d) of the SRC Act.
92. By reason of paragraph 90 and 91, the Plaintiff was legally bound under contract with the Defendant, as it was to her, in so far as to the formation of such contract, as conferred under the SRC Act.
93. By reason of the Defendant's contumelious disregard to resolve matters residual to the Plaintiffs employment, it breached this contract, by vitiating the express provisions of it
94. The Defendant's officers knew (or ought to have known) by reason of direct responsibility and receipt of medical reports (through its delegated officer, Burgess) the detrimental effects the extended delay in resolving such residual matters were having on the Plaintiffs compensable mental illness.
95. By reason of the conduct which is pleaded at paragraphs 92 to 94, the Defendant breached the contract after cessation of the Plaintiffs employment, causing her to suffer loss and damage."
42The claim in tort is pleaded thus -
"Failure to provide safe system of work
96. The Defendant, as the Plaintiffs employer, was required under its duty of care to protect her from transgressions against her basic civil rights and avoidable injury to the Plaintiffs person or reputation.
97. The Defendant intentionally, strategically, deceitfully, contumeliously and flagrantly failed to safeguard the Plaintiffs health and well-being at work, as it was required to do under its standard duty of care.
98. By choosing to so act as pleaded in paragraphs 15 to 86, the Defendant breached its duty of care to Waters, causing her loss and damage.
...
Intentional tort to the person: trespass
Intentional tort to the person: nervous shock
99. Officer for the Defendant, van Blommestein intentionally, contumeliously and deliberately furtively followed and intimidated the Plaintiff. Van Blommestein admitted to the Plaintiff and under formal questioning, that he chose to so act, without regard to her well-being, or contrition.
100. The Defendant's upper management was deliberately and wilfully defiant in its decisions to not control or suppress the actions of its lower management; despite van Blommestein's admissions made without influence or contrition.
101. The ATO Executive chose to not direct van Blommestein's superiors to act accordingly to ensure the Plaintiffs safety. The Defendant knew by reason of the Plaintiff s numerous oral and written pleas for help, the debilitating effects van Blommestein's misconduct had on her general well-being and state of mind.
102. By reason of van Blommestein's misconduct and by reason of the Defendant choosing to so act as in paragraphs 15 to 86, the Plaintiff suffered loss and damage."
43The claim in equity is pleaded as follows -
"Deliberate 'unconscionable conduct' during employment
103. By reason of the Defendant being one of the largest Commonwealth government employers, the Plaintiff assumed that her employment would reflect the existence of, and compliance with the GEAA 2004 (as a certified agreement) the PS Act (in particular "The APS Code of Conduct' and 'APS Values') and the SRC Act.
104. The Plaintiff held expectations that the Defendant would safeguard its employees stringently from avoidable risk of injury, by reason of "leading by example" and to not effect an implied conflict of interest.
105. The Plaintiff was mislead (sic) by the Defendant by reason that the Plaintiff was induced into believing, and relied upon:
(a) Oates commissioning Thompson to investigate the allegations, and that her substantiated, serious complaints of continued abuse, intimidation and harassment, inter alia, by van Blommestein, would be properly and sufficiently handled in accordance with the relevant laws, internal policies, practices and procedures.
(b) that the Defendant would assist in the Plaintiff s recovery and rehabilitation from a serious, compensable mental illness, and that the Defendant would not continue to defiantly aggravate it, using the premise of 'reasonable administrative action'.
(c) that the Defendant, through representation by its senior officers, would comply with established, binding legal principles of the rules of Natural Justice and Procedural Fairness and that those principles would be upheld regarding investigation and the 'Determination' of the 'Suspected Breach of the APS Code of Conduct'.
(d) that the Plaintiff should expect to be treated fairly and that reasonable adjustments would be made for her in the work environment.
(e) that the Defendant would not choose to so act outside of the spirit of any law, such as the abuse of regular threats of breaches of the APS 'Code of Conduct' at any time, without sound reason, to intimidate her; as the weaker, vulnerable party.
(f) that there would exist checks and balances to prevent such widespread, systemic, systematic, flagrant abuse of power within the management of the Defendant."
44The defendant's breaches of contract are alleged to have been constituted by the matter pleaded in paragraphs 15 to 86 inclusive. Those paragraphs cover 33 pages in which a series of events is asserted involving the activities of a dozen or more officials or employees of the Australian Taxation Office between 14 April 2004 and February 2008. It also appears that the plaintiff alleges breach of statutory duties under the Occupational Health and Safety Act 1991 (Cth), the Public Service Act 1999 (Cth), the Privacy Act 1988 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth). Injury to reputation is also pleaded, although there appears to be no action in defamation. The pleading is far too long, detailed and tortuous to include in this judgment. I incorporate it by reference.
45By paragraph 88 the plaintiff asserts that the defendant "held a contumelious disregard for and reached the terms and conditions of the plaintiffs statutory contract. The terms of that contract are not defined but are said to include the ATO (general employees) agreement 2004, called the Certified Agreement, the Public Service Act 1999 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth).
46As I have said the breaches in contract are said to have come about by reason of the conduct pleaded in paragraphs 15 to 86. However, apart from specific references to certain paragraphs of the Certified Agreement and of the Public Service Act 1999 (Cth) the defendant has no means of telling which of the paragraphs are said to involve alleged breaches of contract.
47Counsel for the defendant submits that in that respect the second further amended statement of claim is embarrassing. I agree. The claim as pleaded is at once convoluted and vague. It fails clearly to state a case that must be met by the defendant. Having read the whole of it, I am unable to ascertain precisely how the plaintiff frames her case in contract. I do not think that the defendant should be put to the difficulty of working out from the morass whether the plaintiff has a cause of action for breach of contract or precisely or what the action might consist of. See also the remarks of Branson J in Wearne v Southern Cross University [2006] FCA 1033 at [27].
48The claims in tort are said to be grounded in the events described in the same long assertion of events. Although there is an assertion that the defendant failed to provide a safe system of work the second further amended statement of claim fails to plead that the workplace was not healthy or safe, what steps the defendant ought to have taken to make it safe, the failure to take those steps, and what a reasonable employer in the position of the defendant would have done.
49As to the intentional torts of trespass and nervous shock, it does not appear how the defendant could be responsible for the deliberate and wilful defiance of its "upper management" in its decisions not to control or suppress the actions of its "lower management".
50As to the claim in equity, paragraphs 103 to 105 appear to me to disclose no cause of action.