FEDERAL COURT OF AUSTRALIA Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 Citation: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 Parties: TSE WEI CHANG v CST MINERALS LADY ANNIE PTY LTD File number: VID 118 of 2015 Judge: MORTIMER J Date of judgment: 22 June 2015 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – determination of questions of fact on summary basis not appropriate – determination of questions of statutory construction on summary basis where no applicable authority not appropriate PRACTICE AND PROCEDURE – application for strike out – consideration of relevant principles – whether statement of claim states the material facts sufficient to give fair notice Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A(2), 37N Sex Discrimination Act 1984 (Cth) s 14(2) Federal Court Rules 2011 (Cth) rr 16.21, 26.01 Cases cited: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171; [1991] FCA 557 Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited [2013] FCA 869 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd [2011] FCAFC 145 Date of hearing: 19 June 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Ms F I O'Brien QC Solicitor for the Applicant: Max Legal Counsel for the Respondent: Ms R W Sweet Solicitor for the Respondent: Allens IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 118 of 2015 BETWEEN: TSE WEI CHANG Applicant AND: CST MINERALS LADY ANNIE PTY LTD Respondent JUDGE: MORTIMER J DATE OF ORDER: 22 JUNE 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondent's interlocutory application made on 5 June 2015 is dismissed. 2. The respondent pay the applicant's costs of and incidental to the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 118 of 2015 BETWEEN: TSE WEI CHANG Applicant AND: CST MINERALS LADY ANNIE PTY LTD Respondent JUDGE: MORTIMER J DATE: 22 JUNE 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The respondent has applied for various orders in respect of some of the allegations contained in the applicant's amended statement of claim. 2 The applicant has brought proceedings under the Sex Discrimination Act 1984 (Cth) seeking declaratory relief and compensation against the respondent in respect of alleged sex discrimination during her employment with the respondent. 3 The applicant is a well qualified chemical engineer who was employed to work at the respondent's copper mining site in North West Queensland, near Mount Isa in June 2013. She was employed until July 2014, when she resigned. 4 The applicant's allegations centre around the way she was treated in terms of the reporting lines, supervisory and other responsibilities and levels of consultation afforded to her while she was working at the mine. Relying on a series of incidents, she alleges she was treated less favourably than a man who occupied her position would have been treated, and that people junior to her (in qualifications, experience and position in the company) were instead given responsibilities which should have been hers, and were consulted in company decisions instead of her. 5 In its defence, the respondent denies the allegations, and alleges variously that the applicant was not required or entitled to exercise the responsibilities she asserts, was not entitled to be consulted in the way she asserts, or that the alleged conduct simply did not occur. It also raises an argument about s 14 of the Sex Discrimination Act which is part of the subject matter of this interlocutory application. 6 By an interlocutory application dated 5 June 2015, and filed with its defence, the respondent seeks the following orders: 1. Pursuant to s.31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r.26.01(1)(a) of the Federal Court Rules 2011 (Cth) (Rules), judgment be entered for the Respondent with respect to that part of the proceeding the subject of paragraph 4 of the Amended Statement of Claim filed 22 May 2015. 2. Alternatively to paragraph 1, pursuant to r.16.21 of the Rules, paragraph 4 of the Amended Statement of Claim be struck out. 3. Pursuant to r.16.21 of the Rules, the following paragraphs be struck out: a. sub-paragraphs 3(b), (c), (d), (f) and (g), on the grounds that they: i. are evasive and/or ambiguous; ii. are likely to cause prejudice, embarrassment or delay in the proceeding; and/or iii. fail to disclose a reasonable cause of action; b. sub-paragraph 3(k), on the grounds that it: i. is likely to cause prejudice, embarrassment or delay in the proceeding; and/or ii. fails to disclose a reasonable cause of action. 4. Further, or alternatively to the above, the Applicant provide further and better particulars of the Amended Statement of Claim in response to the Respondent's request for such particulars contained in paragraph 2.6 of the letter dated 13 May 2015 from the Respondent's solicitors, Allens, to the Applicant's solicitors, Max Legal. 5. The Applicant pay the Respondent's costs of and incidental to this application. 7 Dealing first with the attack on paragraph 4 of the statement of claim, it as well to set out the allegation as made by the applicant (in her amended statement of claim filed on 22 May 2015). In contravention of sections 5 and 14(2)(a)(b) and or (d) of the SD Act 1984 between August 2014 and September 2014 the respondent did on the ground of her sex treat the applicant less favourably than it treated and or would have treated a person of the male sex. PARTICULARS (a) Accessed and used the applicant's personal information namely her Probation Review for an improper purpose namely to disparage and humiliate the applicant (b) In email communications between the applicant and Adrian Kempster Human Resources Advisor and Seamus Kennedy Senior HR Advisor, the respondent: (i) Attacked the applicant's professionalism (ii) Gratuitously insulted the applicant. (iii) Peremptorily dismissed: (A) the applicant's complaints about her employment (B) her suggestions for improvement; and (C) her request for retraction of "allegations" that had been made against her. (iv) Further particulars may be provided after discovery. 8 The respondent put its contentions about this paragraph in several ways. Its main legal contention is based on the fact, not disputed by the applicant, that paragraph 4 makes allegations about conduct which occurred after the applicant's employment contract with the respondent had ended. That, the respondent submits, takes the allegation outside a prohibited area of activity under the Sex Discrimination Act. Section 14 and s 14(2) in particular, it submits, governs only conduct occurring during the currency of a person's employment. The respondent submits the result is this Court has no jurisdiction to determine that claim. 9 Second, the respondent submits that what it describes as the "post-employment" acts alleged against the respondent could, in any event, only be within s 14(2)(d) of the Sex Discrimination Act, but that the applicant has no reasonable prospects of success of establishing any detriment and so there should either be summary judgment for the respondent on these allegations, or they should be struck out. 10 Section 14(2) of the Sex Discrimination Act provides: Discrimination in employment or in superannuation (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the arrangements made for the purpose of determining who should be offered employment; (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the terms or conditions of employment that the employer affords the employee; (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides. (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person. (5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund. (6) In this section: member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time. 11 As I indicated during oral argument, in my opinion this is not an appropriate case for any decision to be taken by the Court on a summary basis which involves the determination of questions of fact. That is what the respondent's second argument about "detriment" invites the Court to do. The characterisation of the email communications sent by the respondent, and their effects, should be determined at trial in the light of all the evidence. Matters of inference and context are likely to be involved: conclusions of that nature should not be made prematurely, and out of context: Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd [2011] FCAFC 145 per Edmonds, Jessup and Robertson JJ at [50]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 per French CJ and Gummow J at [21] and [26]. 12 The respondent's first argument raises a question of law and in that sense is better suited to a summary judgment or strike out application. However the proper construction of s 14(2), including its scope, is not straightforward. Neither counsel for the respondent, nor senior counsel for the applicant, could point me to any authority on the issue raised by the respondent. It is novel. 13 There is force in the respondent's submission that s 14(2) is intended to be confined to conduct occurring during the currency of the employment and that is why the terms "employer" and "employee" are used, rather than "person". There is also force in the applicant's submission that s 14, being a protective provision which should be read beneficially, uses those terms in order to describe the relationship between the parties which gives rise to the conduct, but not in a temporal sense to place restrictions around the operation of prohibitions. 14 There will be contextual matters to consider. To give but one example: s 14(4), which deals with the exercise of a discretion about the payment of superannuation benefits, would not seem to be capable of having the temporal limits suggested by the respondent imposed upon it. That may or may not be significant in the construction of another subsection in the same provision. 15 Ultimately, a constructional choice will have to be made, but it is appropriate that occurs in the context of a trial and full argument, especially where there is no applicable authority. I would not agree with the respondent's characterisation of this as a jurisdictional issue, but if the respondent's construction is ultimately found to be correct then it will be the case that even if the conduct can be proven to be discriminatory, it will not be unlawful. 16 There is no basis for summary judgment in favour of the respondent in relation to paragraph 4 of the amended statement of claim. Nor is there any basis to strike out the allegations contained in that paragraph. 17 As to paragraph 3, the respondent makes two complaints. The first is that parts of that paragraph should be struck out. Counsel developed these submissions orally, but I must confess to not having the difficulties in understanding the pleadings that the respondent appears to have. The respondent's complaint that there is not, for example, an express allegation that the applicant was treated less favourably than a man would have been, is without merit. The individuals mentioned in paragraph 3 were all employees of the respondent. The respondent knows their gender. The applicant alleges these men were given additional roles and responsibilities instead of her, and does so by reference to various specific incidents. She does so in the context of a pleading which begins with an express allegation of sex discrimination. I see no difficulty in the way the pleading is expressed. 18 In making its submissions about what the pleading should contain, I do not consider the respondent uses the concept of "material facts" in its correct sense. 19 The principles regarding the requirement to plead all material facts were considered by French J (as his Honour then was) in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171; [1991] FCA 557. At 173-174, his Honour said: A material fact is one which is necessary to formulate a complete cause of action. It is to be distinguished from particulars which are not part of the pleading. Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet. There are certain levels of generality in pleading which while they may bring in all facts necessary to establish a cause of action, are insufficient for that purpose: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705, 712; [1936] 1 All ER 282 at 289, 294; Ratcliffe v Evans [1892] 2 QB 524 at 532; [1891–4] All ER Rep 699 at 704; Farrell (formerly McLaughlin) v Secretary of State for Defence [1980] 1 WLR 172 at 179–80; Charlie Carter Pty Ltd v SDAEA (WA) (1987) 13 FCR 413. … I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality. In my opinion, the level of generality of the statement of claim in this case is too great for Rothmans to know with any precision what case it has to meet. The facts relied upon to support the conclusion about Rothmans' alleged purpose in refusing supply should be spelt out. So too should the facts relied upon to support the conclusion that the refusal has or is likely to have the effect of substantially lessening competition in the relevant market. The allegation is made in para 10 that the refusal to supply substantially damages Kernel's ability to compete in the wholesale and retail markets for the supply of cigarettes in Western Australia. It does not follow from that however, that there would or is likely to be a substantial lessening of competition in that market. The mechanism of the lessening is not identified in the statement of claim. Further, the market in which the lessening of competition is to be measured must be a market in which Rothmans and/or Kernel supplies or acquires goods and must [be] defined with some precision. It is not clear whether Rothmans and Kernel are said to be operating in the same or different functional markets. I accept that the plea based on the contravention of s 46 should plead the material facts necessary to support the allegations that Rothmans has a substantial degree of power in a relevant market and that it has taken advantage of that power for a particular purpose. The incantation of the components of s 46 is not sufficient to disclose the material facts on which Kernel relies to establish those elements. 20 In Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited [2013] FCA 869, Griffiths J set out the principles applicable to a strike out application for failure to plead material facts, including that: "the function of a pleading is to state with sufficient clarity the case that must be met, i.e., the pleading fulfils a basic procedural fairness requirement that a party should have the opportunity of knowing and be able to meet the case against them" (at [11]); "the discretion to strike out a pleading should be exercised with 'great' or 'exceptional' caution" (at [14]); "in some cases the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle and where deficiencies can be overcome by ordering the provision of particulars, or the furnishing of affidavits (see Tracey J's observations to that effect in Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510 at [5])" (at [15]). 21 The applicant has pleaded the material facts of the allegations she makes. In each subparagraph she has set out the conduct she alleges constitutes the discrimination, and the individuals she alleges were involved in that conduct. She has set out the less favourable treatment she alleges, the alleged comparators, and the employment context in which it occurred. 22 The respondent may consider the allegations cannot constitute unlawful discrimination: indeed, by its denials it has made that clear. Whether they do or do not is a matter for the Court at trial, after consideration of all the evidence adduced. 23 The respondent has, in the alternative, sought particulars of these allegations. There has been correspondence between the parties' legal representatives about this issue, and this correspondence was in evidence on the application, exhibited to the affidavit of Ms Harvey, a solicitor acting for the respondent. I consider the pleading gives it sufficient notice of the case it has to meet. For the reasons I set out below, there may be some matters requiring further particularisation, but they are of short compass. 24 Having examined the respondent's request for particulars, it seems to me parts of its request really seek evidence, or an outline of the applicant's arguments, rather than particulars. On the other hand, there are some requests which do appear to be reasonable requests for particulars. For example, the request in relation to paragraph 3(d) of the amended statement of claim for particulars of the "other matters" relied on by the applicant. 25 That said, I do not consider it was unreasonable for the applicant to await the provision of a defence before responding to the request for particulars. Senior counsel for the applicant made it clear during oral argument that a reasonable request for particulars will be answered and I have no reason to doubt that is the case. 26 The application for orders for particulars was premature, and was in any event too wide. I do not propose to grant any relief in respect of it. 27 I expect, in accordance with their obligations under s 37N of the Federal Court of Australia Act 1976 (Cth), that the legal representatives for the parties can sort out these relatively minor issues between them in a cooperative way, without the need to expend excessive resources on returning to court, now that the respondent has filed its defence. Conclusion 28 The interlocutory application will be dismissed. The respondent must pay the applicant's costs of and incidental to the interlocutory application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate: Dated: 22 June 2015