Federal Court of Australia Parkin v Alliance Airlines Pty Limited [2023] FCA 386 File number(s): SAD 73 of 2022 Judgment of: O'SULLIVAN J Date of judgment: 2 May 2023 Catchwords: PRACTICE AND PROCEDURE –application for leave to file an amended statement of claim and amended originating application – where pleading does not disclose a reasonable cause of action – leave refused – applicant to be given further opportunity to file amended statement of claim Legislation: Fair Work Act 2009 (Cth), ss 342, 351 Federal Court Rules 2011 (Cth), r 16.21(1) Industrial Relations Act 1988 (Cth), s 170DE Public Service Act 1922 (Cth), s 56(a) Anti-Discrimination Act 1991 (Qld), ss 7, 9 Human Rights Act 2019 (Qld), ss 8, 9(1)(h), 17(c), 20, 25, 58, 59 Work Health and Safety Act 2011 (Qld), ss 19, 47 Cases cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636, (1994) 217 ALR 226 Austal Ships Pty Ltd (unreported, AIRCFB, 13 August 1997) Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 McManus v Scott-Charlton [1996] FCA 904; (1996) 70 FCR 16 Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors [2012] FCAFC 97; (2012) 203 FCR 325 Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 Division: Fair Work Division Registry: South Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 67 Date of last submission/s: 29 July 2022 Date of hearing: 29 June 2022 Solicitor for the Applicant: Mr R Grealy for JKR Lawyers Counsel for the Respondent: Mr S Mackie Solicitor for the Respondent: HR Law ORDERS SAD 73 of 2022 BETWEEN: JONATHAN PARKIN Applicant AND: ALLIANCE AIRLINES PTY LIMITED Respondent order made by: O'SULLIVAN J DATE OF ORDER: 2 May 2023 THE COURT ORDERS THAT: 1. Leave to the applicant to file an amended statement of claim and originating application in the form annexed to the affidavit of Robert Grealy sworn 28 June 2022 is refused. 2. Leave to the applicant to file an amended statement of claim and amended originating application by on or before 30 May 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'SULLIVAN J: 1 When faced with an application to strike out his statement of claim, the applicant annexed an amended statement of claim and amended originating application in the form annexed to the affidavit of Robert Grealy sworn on 28 June 2022 (Grealy affidavit). No interlocutory application seeking leave to file an amended statement of claim and amended originating application appears to have been filed. 2 In any event, when the matter was called on, by agreement between the parties, the amended statement of claim and amended originating application was to be accepted for filing and the original application to strike out pressed in relation to the amended pleadings. 3 Notwithstanding that agreement, it also seems that the proposed amended statement of claim and amended originating application has not been filed. That is so notwithstanding the applicant referring in his submissions to an interlocutory application. 4 Nonetheless, both parties have filed outlines of argument directed at what is now the proposed amended statement of claim. 5 In circumstances where: (a) The proposed amended statement of claim and proposed amended originating application have not been filed; (b) It is the clear intention of the applicant to rely upon the proposed amended statement of claim and proposed amended originating application; and (c) Both parties' submissions proceed on the basis that the proposed amended statement of claim has been filed; these reasons deal with the proposed amended statement of claim, the proposed amended originating application and the respondent's opposition to the filing of both. 6 The sole issue in this matter is whether the applicant should be given leave to file a proposed amended statement of claim and amended originating application. 7 It is for the reasons which follow that: (a) Leave to file an amended statement of claim and originating application in the form annexed to the Grealy affidavit is refused; and (d) Leave to the applicant to file an amended statement of claim and originating application on or before 30 May 2023. Background 8 The background to this matter may be shortly stated. Where I describe the factual circumstances, it is taken from the draft amended statement of claim and draft amended originating application, and should be seen as me describing the allegation. 9 From on or about 3 May 2010 until 22 December 2021, the applicant was employed by the respondent, most recently as a pilot. 10 On 31 March 2021, the respondent introduced a COVID-19 Mandatory Vaccination Policy, which required, inter alia, that: (a) Each of the respondent's employees were required to receive two doses of an approved COVID-19 vaccine by 15 November 2021 in order to continue working for the respondent (the Vaccination Policy); (b) The applicant was required to provide the respondent with evidence of his vaccination status for inclusion in a record maintained by the respondent (the Vaccination Evidence Direction); and (c) Any employee who failed to comply with the Vaccination Policy or Vaccination Evidence Direction would not be allowed to work and would face disciplinary action. 11 After implementing the Vaccination Policy, the respondent sent several emails to the applicant in relation to the Vaccination Policy and the applicant's vaccination status. 12 On or about 24 December 2021, the respondent sent correspondence to the applicant advising him that as he had not provided proof of his vaccination status as required by the Vaccination Policy, the respondent was considering terminating his employment. The respondent also sent the applicant an invitation to attend a meeting in relation to his vaccination status on 4 January 2022. 13 On 4 January 2022, the applicant sent an email to the respondent, setting out that he considered the Vaccination Policy and Vaccination Evidence Direction to be unlawful. 14 On 4 January 2022, the respondent cancelled the meeting in relation to the applicant's vaccination status and sent the applicant notification that his employment had been terminated for non-compliance with the Vaccination Policy. Relevant principles 15 Although this matter is an application to file amended pleadings and an originating application, nonetheless leave will be refused if the proposed pleading would be struck out. 16 The principles applicable to striking out a pleading are well-settled. In Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286, Mason CJ and Gaudron J describe the function of pleadings in the following terms: The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) (25), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. 17 In Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, [57], Gaudron, McHugh, Gummow and Hayne JJ said: … Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. (Citations omitted) 18 The reference to the "test" by the High Court was a reference to the well-known statements in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 per Barwick CJ: … in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. and Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 per Dixon J: The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. 19 Although the passages set out above from both General Steel Industries and Dey dealt with striking out actions which were frivolous and vexatious and an abuse of process, the same principles apply to other grounds upon which a strike-out is sought. 20 In Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244, Gilmour J considered a number of authorities before stating at [20]: The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case: Australian Competition and Consumer Commission v Pauls Ltd [2000] ATPR 40,641 (41-747) at [10] O'Loughlin J citing Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364 at 365. Where such a case is made out the Court should not shrink from exercising its discretion to strike out the relevant pleading. 21 The authorities also make it clear that the power to strike-out a pleading because it discloses no reasonable cause of action is only to be exercised in plain and obvious cases, where it is clear no reasonable amendment can cure the alleged defect, and there is no reasonable question to be tried: see Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636, (1994) 217 ALR 226; Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors (2012) 203 FCR 325; [2012] FCAFC 97, [40]-[43]. The parties' submissions and consideration 22 The respondent relies on r 16.21(1) of the Federal Court Rules 2011 (Cth), which relevantly provide at (d) and (e): (1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading: … (d) is likely to cause prejudice, embarrassment or delay in the proceeding; or (e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; 23 Central to the applicant's pleading is the Vaccination Policy. 24 The applicant submits that the Vaccination Policy was both unlawful and unreasonable and that refusal to comply with an unlawful or unreasonable direction will not justify disciplinary action or dismissal, such that any adverse action by the employer will amount to a breach of the employment contract. 25 Insofar as the Vaccination Policy is alleged to be unlawful, the particulars of that allegation are contained in [22]-[26] of the proposed amended statement of claim. Paragraph 25 pleads that it was a term of the Vaccination Policy, or alternatively the respondent's intention that the respondent will not grant exemptions against vaccination with an available vaccine on political grounds or conscientious, moral, spiritual or religious grounds. 26 At [26] the applicant alleges that the respondent had not accepted any employee's request for exemption on religious, conscientious, spiritual or moral grounds or political grounds. 27 The respondent submits that the proposed amended statement of claim is confusing and in parts nonsensical, such that it is likely to cause delay. The respondent also identifies issues with each cause of action in the proposed amended statement of claim said to sound in damages. 28 The respondent also submits the applicant confuses his causes of action between contract, general protections and unfair dismissal. 29 After pleading unlawfulness/unreasonableness, the applicant pleads various causes of action. As I understand the pleading, it is these causes of action which are said to give rise to the unlawful/unreasonable character of the Vaccination Policy. Breach of Anti-Discrimination Act 1991 (QLD) and s 351 of the Fair Work Act 2009 (Cth) 30 At [38]-[41] the applicant pleads unlawful discrimination against the respondent. 31 The applicant pleads: at [40], [41] the Vaccination Policy was indirectly discriminatory contrary to: (a) ss 7 and 9 of the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act); and (b) s 351 of the Fair Work Act 2009 (Cth) (FW Act). 32 Section 9 of the Anti-Discrimination Act prohibits direct and indirect discrimination. Section 7 prohibits discrimination on the basis of a number of attributes including, relevantly, religious belief or religious activity and political belief or activity. The religious beliefs and activities are identified at [27] and the political ideology in [28] of the proposed pleading. 33 As to the religious beliefs in [27], none of the beliefs are identified. Instead a series of conclusions are pleaded. In some cases, there is a mere assertion of a vaccine being contrary to religious and conscientious beliefs. 34 None of the matters pleaded in [28] of the proposed pleading amount to a political belief or activity so as to contravene s 7 of the Anti-Discrimination Act. Merely because a particular political party may take a view on vaccinations does not convert adoption of that view into a political belief or activity. To that extent, the pleading is a series of conclusions. 35 The applicant submits that his claim under s 351 of the FW Act is based upon the definition of discrimination found within that section, and is not based on the definition of discrimination found in the Anti-Discrimination Act. As I understand that submission, the applicant refers to s 351(1) of the FW Act. 36 The respondent submits that the claim under s 351 of the FW Act is based upon the definition of "discrimination" and "indirect discrimination" in the Anti- Discrimination Act which is contrary to law. Even if the state legislation were to apply, the respondent contends that the applicant fails to plead the elements of "indirect discrimination". 37 The pleading that the Vaccination Policy is contrary to s 351 of the FW Act suffers from the same problems as the pleading of s 7 of Anti-Discrimination Act. Breach of Human Rights Act 2019 (Qld) 38 The applicant has not made submissions on the alleged cause of action. 39 The pleading of a breach of the Human Rights Act 2019 (Qld) (HR Act) is at [42]-[44]. The pleading refers to ss 8, 17(c), 20, 25 and 58 of that Act. 40 The applicant concludes in the pleading that the Vaccination Policy was not "compatible with human rights" within the meaning of s 8 of the HR Act and thereby in breach of s 58 of that Act. 41 The respondent submits that the claim under the HR Act is insufficiently pleaded. The respondents submits that the HR Act only applies to non-government entities when they perform functions for the State (see s 9(1)(h) of the HR Act) and it does not apply to non-government entities generally. The respondent submits that the applicant needs to plead the function that the respondent is said to be providing to the State, and how the alleged breaches are said to occur "when" the respondent was performing those functions. Further, the respondent contends the applicant needs to plead the basis upon which he is entitled to seek relief under s 59 of the HR Act. 42 Amongst other things, s 58 makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. To that extent, the allegation of a breach of s 58 is entirely reliant on s 8 of the HR Act. In turn, the allegation that the Vaccination Policy was not "compatible with human rights" relies on alleged breaches of ss 17(c), 20 and 25. 43 Section 17(c) provides that a person must not be "subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent". There is nothing pleaded to support a breach of that provision. What is pleaded amounts to no more than conclusions. 44 Section 20 refers to the right of freedom of thought, conscience, religion and belief. There is nothing pleaded to support a breach of that provision. What is pleaded amounts to no more than conclusions. 45 Section 25 preserves the right to privacy. There is nothing pleaded to support a breach of that provision. Once again, what is pleaded amounts to no more than a series of conclusions. 46 It is for these reasons that I accept the respondent's submissions in relation to the alleged breach of the Act. Breach of contract 47 The applicant pleads breach of contract by alleging: (a) Breaches of the Work Health and Safety Act 2011 (Qld) (Work Health and Safety Act); (b) Breach of workplace rights; (c) Breach of the Privacy Act 1988 (Cth) (Privacy Act); and (d) Misrepresentation. 48 The applicant submits that the Vaccination Policy was unlawful as being contrary to ss 19 and 47 of the Work Health and Safety Act. That may be the submission and I accept there is a pleading of breach of provisions of the Work Health and Safety Act, however, there is no nexus pleaded between the alleged breaches and why that is said to amount to a breach of the employment contract. Workplace Rights 49 The applicant pleads: at [51], workplace rights for the purposes of s 342 of the FW Act. Specifically, the applicant pleads: (a) The applicant's rights and entitlements under the Work Health and Safety Act; (b) The applicant's right not to be unlawfully discriminated against; and (c) The applicant's rights under the National Employment Standards, particularly the right to be excused for work-related activities whilst on sick leave. 50 The applicant pleads breach of these workplace rights: at [52]. Of those alleged breaches, I have dealt with all save for the allegation of contact with the applicant whilst on approved sick leave. No complaint is made about that pleading. Privacy Act and Misrepresentations 51 The other causes of action pleaded as a basis for breach of contract, being the Privacy Act and misrepresentation are not the subject of targeted complaint. 52 The respondent does not complain about the pleadings in relation to these causes of action. 53 The respondent identifies three difficulties with this claim. 54 The first is that while the amended statement of claim contains a heading titled, "Breach of Contract", the paragraphs said to provide a basis for that claim do not identify any breach of contractual terms. Rather, at [67] of the amended statement of claim, the applicant seeks damages for "wrongful dismissal", which the respondent submits is not an action known to law. 55 The applicant submits that the claim for "wrongful dismissal" is merely a reference to the respondent's alleged breach of the employment contract. That being the case, the pleading suffers from clumsy drafting which is easily remedied. However, I accept the respondent's submission that no attempt is made by the applicant to identify the term of the employment contract said to have been breached, other than the assertion in the applicant's submission of an implied term as to unlawfulness and unreasonableness. Self-evidently, that is not an adequate pleading. 56 The second is that even if the amended statement of claim contained the intended breach of contract claim, the respondent submits it would still fail to disclose a reasonable cause of action. As I have noted, in his submissions, the applicant refers to a contract of employment containing an implied term "requiring employees to comply with their employers' reasonable and lawful directions". There is no pleading of an implied term, however, the applicant pleads the Vaccination Policy was not a lawful and reasonable direction under the Employment Contract: at [64]. By itself, that is not sufficient to put the respondent on notice as to the case it has to meet. 57 The respondent submits a term that an employee must follow certain directions, is just that, and it is not a term that the employer cannot dismiss the employee if they fail to follow such a direction. I accept that submission for the reasons set out above. 58 The third difficulty faced by the applicant in his breach of contract claim, is that in support of his submission that employees are only required to follow employment directions which are lawful and reasonable, the applicant relies on two authorities, McManus v Scott-Charlton [1996] FCA 904; (1996) 70 FCR 16 and Austal Ships Pty Ltd (unreported, AIRCFB, 13 August 1997). 59 The respondent submits that these two authorities do not support the existence of an implied contractual prohibition of the type alleged. 60 The respondent submits McManus considered only whether a public servant had properly been disciplined under s 56(a) of the Public Service Act 1922 (Cth), and is not authority for some broad limitation applying beyond the pages of the relevant statute. 61 In Austal, the issue before the then Australian Industrial Relations Commission was whether the dismissal complied with the statutory limitation under s 170DE of the Industrial Relations Act 1988 (Cth) that it not be "harsh, unjust or unreasonable". The respondent submits that it is not authority for the proposition that the unfair dismissal regime has some implied common-law equivalent. 62 I accept the respondent's submission that neither McManus nor Austal assist the applicant. Breach of the Work Health and Safety Act 2011 (Qld) 63 As I understand the pleading, it is the pleadings relating to the cause of action I have set out above which form the basis to support the allegation of unlawfulness and unreasonableness. 64 On that basis, there is nothing currently pleaded to support the allegation that the Vaccination Policy was unlawful or unreasonable. Conclusion 65 The authorities to which I have referred make it clear that the power to strike-out a pleading because it discloses no reasonable cause of action is only exercised in plain and obvious cases, where it is clear no reasonable amendment can cure the alleged defect, and there is no reasonable question to be tried. 66 It is for the reasons I set out above that I do not consider the proposed amended statement of claim discloses a reasonable cause of action. Nonetheless, I am not satisfied that cannot be remedied and the applicant should be given a further opportunity to file an amended statement of claim. 67 There will be orders accordingly. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate: Dated: 2 May 2023