Scapin v The University of Notre Dame Australia [2018] FCA 906

Scapin v The University of Notre Dame Australia [2018] FCA 906

The breach of statutory duty claim as pleaded had no reasonable prospect because it sought damages in respect of the 2012 foot injury and psychiatric disease under State law in circumstances attracting the Workers' Compensation and Injury Management Act 1981 (WA), and no federal inconsistency issue arose. The implied good faith claim was not suitable for summary judgment but the identified pleading paragraphs were embarrassing and had to be struck out with liberty to replead. The adverse action allegations were not pleaded with sufficient clarity to identify the acts or omissions said to constitute adverse action and were struck out with liberty to replead. A splitting order was refused...

Jurisdiction
Australia
Judgment Date
15 June 2018
Procedural Posture
Industrial Law Proceeding Involving Alleged Contraventions of the Fair Work Act 2009 (cth), Alleged Contraventions of an Enterprise Agreement, Breach of an Implied Term of Good Faith and Breach of Statutory Duty / Interlocutory Application by the Respondents for Summary Judgment, Alternatively Strike Out and Repleading Orders, and a Splitting Order
Outcome
Respondents' interlocutory application partly granted; specified parts of the pleadings struck out with liberty to replead; splitting order refused; interlocutory application otherwise dismissed.
Legal Topics
['summary Judgment' 'strike Out of Pleadings' 'adverse Action' 'enterprise Agreement' 'implied Term of Good Faith' 'breach of Statutory Duty' 'workers Compensation Bar to Damages' 'splitting Order']
['industrial Law' 'employment Law' 'civil Procedure' 'workers Compensation'] ['summary Judgment' 'strike Out of Pleadings' 'adverse Action' 'enterprise Agreement' 'implied Term of Good Faith' 'breach of Statutory Duty' 'workers Compensation Bar to Damages' 'splitting Order']

Case Brief

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Procedural Posture

Industrial Law Proceeding Involving Alleged Contraventions of the Fair Work Act 2009 (cth), Alleged Contraventions of an Enterprise Agreement, Breach of an Implied Term of Good Faith and Breach of Statutory Duty / Interlocutory Application by the Respondents for Summary Judgment, Alternatively Strike Out and Repleading Orders, and a Splitting Order

Legal Issues

  1. 1 ["Whether the applicant had reasonable prospects of maintaining a damages claim for breach of statutory duty under s 19 of the Occupational Safety and Health Act 1984 (WA) in light of the Workers' Compensation and Injury Management Act 1981 (WA)." 'Whether the implied term of good faith claim in the employment contract should be summarily dismissed or struck out for defective pleading.' 'Whether the adverse action allegations were sufficiently pleaded or should be struck out with liberty to replead.' 'Whether additional strike out objections needed determination in light of the adverse action repleading orders.' 'Whether a splitting order should be made so liability would be determined separately from consequential orders and compensation.']

Ratio Decidendi

The breach of statutory duty claim as pleaded had no reasonable prospect because it sought damages in respect of the 2012 foot injury and psychiatric disease under State law in circumstances attracting the Workers' Compensation and Injury Management Act 1981 (WA), and no federal inconsistency issue arose. The implied good faith claim was not suitable for summary judgment but the identified pleading paragraphs were embarrassing and had to be struck out with liberty to replead. The adverse action allegations were not pleaded with sufficient clarity to identify the acts or omissions said to constitute adverse action and were struck out with liberty to replead. A splitting order was refused...

Court Disposition

Respondents' interlocutory application partly granted; specified parts of the pleadings struck out with liberty to replead; splitting order refused; interlocutory application otherwise dismissed.

Orders

  • ['[154]-[156] of the further amended statement of claim dated 4 September 2017 and [6] of the prayer for relief of the originating application dated 4 April 2017 be struck out.' 'There be liberty to replead in relation to the adverse action claim, if desired, that involves the 2012 foot injury and psychiatric...