Goodall v Tristar Steering and Suspension Australia Limited [2007] FCA 929

FEDERAL COURT OF AUSTRALIA

Goodall v Tristar Steering and Suspension Australia Limited [2007] FCA 929 INSPECTOR ELIZABETH GOODALL (OFFICE OF WORKPLACE SERVICES) v TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED ACN 004 311 111 NSD 232 OF 2007

GYLES J

12 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 232 OF 2007

BETWEEN: INSPECTOR ELIZABETH GOODALL (OFFICE OF WORKPLACE SERVICES)

Applicant

AND: TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED ACN 004 311 111

Respondent

JUDGE: GYLES J

DATE: 12 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is a motion by the respondent to strike out all or parts of a statement of claim in a matter which is due for hearing in the reasonably near future. As I am the trial judge, up to a point, the less I say the better, unless I am disposed to strike out the whole of the statement of claim. I can say immediately I am not disposed to do that. What has been called the alternative case, that is the actual change in the work afforded to the particular employees, is, I think, adequately pleaded and is open, particularly having in mind the reverse onus in relation to prohibited reason. As I have explained to counsel, having come to that view, I do not propose to go through the pleading of that aspect of that matter with a fine tooth comb. The criticisms which are made can be subject to argument at the trial. 2 I should also notice that this is quite a late application to have a proceeding struck out as misconceived. That does not mean that it is any the worse in one sense for that, but it does come at a time when both the Court and the parties have devoted some time to having the matter almost ready for hearing or very close to being ready for hearing. Although there are special problems in dealing with industrial cases because of the inhibition on making orders for costs, the delay is a factor I do have to take into account. 3 So far as the principal basis on which the case is put, namely, the avoidance of dismissal of the employees, I have indicated during the course of argument a firm view that the pleading of paragraph 5A of the Statement of Claim is deficient. It does not plead the terms of the redundancy aspect of the certified agreement in force in this case. It seems to me that the pleading of what counsel called common law redundancy is entirely irrelevant to the issue before the Court and, no matter what else happens, that paragraph will be struck out. Counsel for the applicant has indicated that an application to amend would be made in that event. It would be a very easy amendment to make and he says it would not affect the evidence in the case. Therefore, I think that, subject to any very powerful objection by counsel for the respondent, such an amendment would be permitted. 4 I can see the force of much of the argument that has been presented for the respondent in the case. It is a very unusual situation. It is said that employees are injured by reason of them not having been dismissed. Nonetheless, it seems to me that a number of the cases to which reference has been made do give a very wide construction to s 792 of the Workplace Relations Act 1996 (Cth) and its predecessors, wide enough to possibly include non-action as well as action and non-action in relation to non-legal rights. Having in mind the fact that it will not be very long before I will have to analyse these cases in considerable detail, I will not go through that exercise today except to observe that the cases are, as counsel for the respondent has said, decided on very different facts. That does not mean that the arguments based upon them are to be rejected out of hand. Of course, the backdrop to this application is the very high onus which lies upon a party seeking to strike out a statement of claim or cause of action, particularly at this stage of a case. 5 Except to the extent to which I have referred as to paragraph 5A, the motion will be rejected. Formal orders will be made later. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.