FEDERAL COURT OF AUSTRALIA Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2011] FCA 406 Citation: Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2011] FCA 406 Parties: LINDA HELAL v MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017) File number: VID 632 of 2010 Judge: TRACEY J Date of judgment: 20 April 2011 Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 45, 49 Federal Court Rules O 12 r 3 Disability Discrimination Act 1992 (Cth) s 5 Cases cited: Purvis v The State of New South Wales (2003) 217 CLR 92 considered Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-692 considered Date of hearing: 20 April 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr J Snaden Solicitor for the Applicant: Australian Government Solicitors Office Counsel for the Respondent: Mr M Follett Solicitor for the Respondent: Ai Group Legal IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 632 of 2010 BETWEEN: LINDA HELAL Applicant AND: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017) Respondent JUDGE: TRACEY J DATE OF ORDER: 20 APRIL 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Respondent's motion notice of which was given on 4 April 2011 be refused. 2. The costs of the motion be costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 632 of 2010 BETWEEN: LINDA HELAL Applicant AND: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017) Respondent JUDGE: TRACEY J DATE: 20 APRIL 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This proceeding is brought pursuant to s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act"). The Applicant (an inspector appointed under the BCII Act) alleges that the Respondent contravened s 45 of the BCII Act by revoking permission that it had earlier granted to a contractor – Hanlon Industries Pty Ltd ("Hanlon") – to perform certain works at a construction site in North Geelong. 2 Section 45 of the BCII Act prohibits discrimination by one company against another "on the ground" that the second company's employees are not covered by a particular kind of industrial agreement. 3 Paragraph 10 of the Applicant's amended statement of claim alleges that McConnell Dowell Constructors (Aust) Pty Ltd ("McConnell Dowell") effected the "Revocation because [Hanlon] was not a party to a Workplace Agreement …". 4 The Applicant seeks various forms of relief including the imposition of pecuniary penalties, the payment of compensation to Hanlon and the making of a declaration. 5 In a request for further and better particulars of the Applicant's amended statement of claim (which request was dated 4 March 2011) McConnell Dowell sought particulars of the allegation contained in paragraph 10 of the amended statement of claim. 6 The Applicant declined to provide further and better particulars of the allegation. In a letter from her solicitor to McConnell Dowell's solicitors her reasons were explained as follows: "3. You will note that we have declined to answer the second paragraph of your request on the basis that it is not a proper request for particulars. With respect, the allegation in paragraph 10 of the amended statement of claim – namely, that your client engaged in conduct because of matters specified – is not an allegation as to a condition of mind, nor is it in the nature of an unsubstantiated conclusion. It is an allegation of fact about the reason or reasons for which your client did what our client alleges it did – a matter that is, of course, peculiarly within your client's knowledge and one that, in any event, requires no particularisation. 4. Our client intends to prove the allegation in paragraph 10 of the amended statement of claim by tendering, at the least, Mr Stein's letter to Tony Bradford of 12 May 2009 (which, we shall submit, records the reason – or a reason – for your client's decision to revoke the 'Assembly of Approval'). There may be additional documentary evidence relevant to that factual allegation that is provided in the course of discovery; of course, our client may rely on that, if there is any. And, naturally, our client will rely upon the oral testimony of her witnesses, of which you will receive notice in the form of outlines in due course." 7 Further correspondence between solicitors followed. The Applicant continued to refuse to provide the particulars sought. 8 By notice of motion filed on 4 April 2011 McConnell Dowell has sought an order that the Applicant provide those particulars. 9 The Applicant opposes the making of such an order. 10 McConnell Dowell relies on O 12 r 3 of the Federal Court Rules which requires that a party pleading "any condition of mind" to give particulars of the facts on which it relies. The term "condition of mind" is defined to include any disorder or disability of mind, any malice and any fraudulent intention, but does not extend to knowledge. It was submitted that the obligation would have arisen, as a pleading requirement, independently of O 12 r 3. 11 In Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 Drummond J observed (at [12]) that: "… a pleading must contain only a statement in summary form of the material facts, but not the evidence by which those facts are to be proved, while the primary function of particulars is to ensure that effect is given to 'the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs'…" 12 Thus, if one party alleges that another acted maliciously it is required to provide the facts on which the allegation is based. There may, for example, have been a history of personal animosity or acrimonious business dealings which, it is alleged, led to the defendant acting maliciously to the prejudice of the plaintiff. The defendant should not be left to guess about the basis of the allegation. 13 In Purvis v The State of New South Wales (2003) 217 CLR 92, the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth) which provided that "a person…discriminates against another person…on the ground of a disability of the aggrieved person if because of the disability" the actor did certain things. In his Honour's judgment Callinan J made certain observations about the issue of whether the appellant had been treated less favourably "because of" his disability. His Honour said (at 163) that: "…The arguments about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter's use of the expression "by reason of" in the equivalent provisions of the Sex Discrimination Act…rather than the expression "because of" used in s 5(1) and other provisions of the Act…Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person "whether or not it is the dominant or a substantial reason for doing the act" then for the purposes of the Act "the act is taken to be done for that reason". …For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of". (Emphasis in original). 14 Nothing turns, for present purposes, on the differing phrases "because of" (as used in the Disability Discrimination Act), and "on the ground that" used in s 45 of the BCII Act. The central question at trial will be why McConnell Dowell revoked its arrangements with Hanlon. If the true reason was that Hanlon was not a party to an industrial instrument the allegation will have been made out. That is the allegation made in paragraph 10 of the amended statement of claim. This is the material fact alleged in that paragraph. The allegation will either be made good by evidence at trial or it will not. 15 Particulars of the allegation are only required to the extent that that is necessary to ensure that McConnell Dowell is not deprived of a fair trial. It knows the central allegation made against it. As a corporate entity it is entitled also to know which of its employees it is alleged made the decision to terminate the arrangements with Hanlon and when that decision was said to have been made. This information has been provided in correspondence. The Applicant has foreshadowed the possibility of further particulars being provided once discovery has been completed. 16 McConnell Dowell expressed concern that it might be prejudiced at trial were its witnesses to be cross-examined on matters not particularised or disclosed in witness statements. Counsel cited by way of example the possibility of McConnell Dowell's witnesses being questioned about previous associations with unions which may have made them apprehensive about the consequences of engaging a non-unionised workforce. 17 The answer to these concerns is that the trial will be conducted in such a way as to ensure that no such allegations will be allowed to be put unless a foundation for them has been laid in the witness statements which will be filed and served by the Applicant in advance of the trial. 18 Similar limitations will be placed on the conduct of the case on behalf of McConnell Dowell. In this way, the fairness of the trial will be ensured, and McConnell Dowell will not suffer the prejudice which it thus far has apprehended. 19 In these circumstances I do not consider that the Applicant is obliged, at the present time at least, to provide further and better particulars of the allegation contained in paragraph 10. The Respondent's motion will be refused. Costs of the motion will be costs in the cause. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 20 April 2011