Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2017
  4. WorkPac Healthcare Pty Ltd v Rovic & Ors (No 3) - [2017] QDC 188

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

WorkPac Healthcare Pty Ltd v Rovic & Ors (No 3)[2017] QDC 188

WorkPac Healthcare Pty Ltd v Rovic & Ors (No 3)[2017] QDC 188

DISTRICT COURT OF QUEENSLAND

CITATION:

WorkPac Healthcare Pty Ltd v Rovic & Ors (No 3) [2017] QDC 188

PARTIES:

WORKPAC HEALTHCARE PTY LTD

(plaintiff)

v

BRANKA ROVIC

(first defendant)

and

SUPREME NURSING PTY LTD (ACN 616 337 136)

(second defendant)

and

PRINCIPISSA BELLATRICUS PTY LTD (ACN 616 324 451)

(third defendant)

and

ELITE DUCE PTY LTD (ACN 616 234 015)

(fourth defendant) 

FILE NO/S:

5047 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

14 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2017

JUDGE:

Smith DCJA

ORDER:

  1. I strike out the defence and counterclaim.
  2. I allow the defendants 28 days to re-plead. 
  3. I order the defendant to file and serve a fresh copy of the pleading without the struck-out paragraphs.
  4. I adjourn the plaintiff’s application for the defence and counterclaim to be removed from www.supremenursing.com.au and for the document to be placed in a sealed envelope to a date to be fixed.
  5. I adjourn the plaintiff’s application for security for costs to a date to be fixed.
  6. I will hear the parties on the question of costs.

CATCHWORDS:

PRACTICE AND PROCEDURE – APPLICATION TO STRIKEOUT DEFENCE AND COUNTERCLAIM OR PARTS THEREOF- whether order should be made

PRACTICE AND PROCEDURE- APPLICATION FOR SECURITY FOR COSTS – whether order should be made

Uniform Civil Procedure Rules 1999 (Q) rr 149, 152, 171, 371, 382, 670, 671, 672

Australian Automotive Repairers’ Association v NRMA Insurance Ltd [2002] FCA 1568

Coco v Ord Minnett Ltd [2012] QSC 324

Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583; [2013] QSC 211

Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor [2002] QCA 241

Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162

Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457

Odgers on Pleading 19th ed. 1966

COUNSEL:

Mr G Handran for the plaintiff

Mr J Lavercombe for the defendants

SOLICITORS:

Tucker & Cowan Solicitors for the plaintiff

Lillas & Loel Lawyers for the defendants

Introduction

  1. [1]
    The plaintiff applies to the court for orders that the defence and counterclaim filed 22 February 2017 be struck out pursuant to UCPR r 171. Alternatively, the plaintiff applies for various paragraphs of the defence and counterclaim to be struck out together with an order for particulars and the production of documents for inspection.
  1. [2]
    Further, an order pursuant to r 371 of the UCPR it be declared that the defendants have admitted various paragraphs of the further amended statement of claim.
  1. [3]
    There is a second application seeking an order that the defendant, pursuant to r 670 of the UCPR provides security for the plaintiff’s costs of and incidental to the counterclaim in the sum of $78,600 and if such security is not provided, the action be dismissed or stayed.

Pleadings

Further Amended Statement of Claim

  1. [4]
    In the further amended statement of claim filed 23 January 2017, the plaintiff alleges that at all material times it carried on the business of recruiting nursing and health-related personnel (candidates) for temporary or permanent work placements with third parties. Candidates included doctors, occupational therapists, registered nurses, enrolled nurses, assistants in nursing, nurse educators, nurse managers, care coordinators, directors of nursing, aged care workers and other nursing and healthcare related personnel; placing the candidates including by way of labour hire in temporary or permanent work placements with third parties and from in about December 2013, through a business stream called “Central Staffing Office” provided labour management services including roster management and payroll activities to Queensland Corrective Services and Prison Health Services.[1]
  1. [5]
    It is further alleged that at all material times WorkPac, or alternatively, the WorkPac Group, carried on the business of recruiting candidates for such placements and placing the candidates in temporary or permanent work placements with third parties on a number of industrial sectors.[2]
  1. [6]
    It is alleged that the second defendant (Supreme Nursing Pty Ltd) was controlled by the first defendant and two others, namely Mr Chand and Aitkin and it carried on business recruiting candidates for temporary or permanent work placements with third parties, placing candidates in such jobs and providing labour management services and has been a competitor of the plaintiff.[3]It is further alleged that the third and fourth defendants were controlled by the first defendant.[4]
  1. [7]
    It is alleged that from September 2013 until January 2014 the first defendant was employed by the plaintiff as business centre administration manager and then business development manager, business centre manager and business development manager until on or about 19 September 2016.[5]It is alleged that the role of the business development manager was the sole point of contact between the plaintiff and clients managed by the business manager, was responsible for maintaining and developing relationships between clients or the plaintiff business, securing and maintaining contracts with existing and potential clients of the plaintiff business, negotiating the terms and pricing of such contracts, in particular the Police Youth Detention Centre, Brisbane Women’s Correctional Centre, Brisbane Correctional Centre and Wolston Men’s Correctional Centre and was entitled to incur and seek reimbursement of expenses relating to the plaintiff’s business for entertaining clients in pursuit of accounts and a share of the profits by way of commissions.[6]
  1. [8]
    It is alleged that on or about 2 December 2013 and 16 December 2016, the plaintiff and the first defendant entered into employment agreements, the particulars of which are set out in paragraph 9 of the further amended statement of claim. The agreements contained a restraint of trade clause, namely for six months after the termination date of the employee’s employment. It was further agreed that the first defendant not take any confidential information belonging to the plaintiff.
  1. [9]
    It is alleged that by letter dated 11 September 2015, the first defendant was appointed as business centre manager, Brisbane North business centre.[7]
  1. [10]
    It is further alleged that the central staffing office was established by the plaintiff in or about December 2015 for the sole purpose of the plaintiff providing roster management and associated administrative services to Queensland Corrective Services and Prison Health Services involving candidate usage, percentage performance and was information unique to the plaintiff and contained confidential information.[8]
  1. [11]
    On 22 September 2016, the first defendant gave the plaintiff four weeks’ notice in writing of her intention to cease her employment. The termination date under the contract was therefore 20 October 2016.[9]Annexure A sets out a list of the plaintiff’s clients and each of these clients was located within a 250km, or alternatively 100km, or alternatively 50km radius from 19 Lang Parade Milton.[10]It is further alleged that each of the people listed in Annexure B were registered with the plaintiff as a candidate.[11]
  1. [12]
    In paragraph 19 it is alleged that the plaintiff was the owner of confidential information which related to information regarding the plaintiff’s clients and candidates. It is further alleged that during the course of the first defendant’s employment with the plaintiff, the plaintiff’s computer system was a database and computer application which included the confidential information.[12]
  1. [13]
    It is alleged that on or about 10 October 2016, Mr Chand or another person unknown to the plaintiff, accessed the plaintiff’s computer system via the first defendant’s login and password and surreptitiously, and without the plaintiff’s consent, copied information concerning the plaintiff’s clients and candidates and other confidential information. It is alleged that this breached the contract and further, there was a duty of trust and confidence toward the plaintiff in relation to this information.[13]
  1. [14]
    It is alleged the first defendant registered a number of businesses and operated these businesses in breach of the contractual restraints by competing with the plaintiff for work placing candidates with the plaintiff’s clients, accepting orders from the plaintiff’s clients to place candidates and encouraging the plaintiff’s clients to place orders from candidates with the first defendant.[14]
  1. [15]
    It is further alleged the first defendant encouraged the plaintiff’s clients to cease doing business with the plaintiff and encouraged employees of the plaintiff to leave and start working with her and encouraged some of the plaintiff’s candidates to register as candidates with her.[15]It is alleged that the first defendant thereby breached the obligation of trust and confidence by unlawfully using the confidential information and engaging in the conduct relevant to the plaintiff’s clients and candidates.[16]
  1. [16]
    It is further alleged that the other defendants are parties to these breaches and contraventions.[17]  
  1. [17]
    It is then alleged that the first defendant’s breaches of contract have and will continue to cause the plaintiff to suffer loss and damage which was estimated to be about $480,000 in the six months after 20 October 2016.[18]
  1. [18]
    In the premises the plaintiff claims injunctions, damages for breach of contract, exemplary damages, a declaration that the information referred to in paragraphs 19 or 20 is confidential, an order for delivery up of the confidential information and a further injunction concerning use of the confidential information or further or alternatively damages or an account of profits settled with costs and interest.

Defence and Counterclaim

  1. [19]
    I found the defence to be a document difficult to read and have summarised it as best I can understand as follows.
  1. [20]
    The defendants have filed a defence and counterclaim on 22 February 2017.[19]  
  1. [21]
    I found paragraph 3 is difficult to follow, pleads evidence, not material facts and irrelevant material- certainly insofar as paragraph 5A of the further amended statement of claim is concerned.
  1. [22]
    As to paragraph 5A of the further amended statement of claim, the defendants say:
  1. (a)
    during the period 7 December 2016 and 23 December 2016, the second defendant placed three nurses at the Arthur Gorrie Correctional Centre but carried on no business for or associated with Queensland Corrective Services, Prison Health Services other than that associated with the defendant’s placements; 
  1. (b)
    say that but for the contract release defined below, the business conducted by the second defendant since 7 December 2016 would qualify the second defendant as a “competitor” insofar as the words defined in the contract; 
  1. (c)
    refers to matters sworn in the affidavit of the first defendant filed on 23 January 2017 and alleges that any employment agreement between the first defendant and the plaintiff was varied so that there were no restraint obligations;[20]alleges that an employee of the plaintiff was present when Mr Prasad of the plaintiff agreed to release the first defendant from the restraint provisions;[21]
  1. (d)
    The defendants allege that Jane Sullivan, an employee of the plaintiff, heard Mr Prasad in the telephone conversation deposed to in the affidavit of the first defendant sworn and filed on 23 January 2017.   The defendant says that after the conversation between the first defendant and Mr Prasad, Mr Prasad confirmed the contract release with Katy Steenstrup.[22]
  1. (e)
    The defendant then alleges that on or about 26 September 2016 Ms Steenstrup drafted a letter from the plaintiff to the first defendant which was of a kind that: 

“But for the plaintiff having released a resigning employee of any relevant contrasts or restraints would have included words that reminded the employee of the constraints and restraints to which the employee was subject for the period after the employments of the then employee ceased with the plaintiff.”[23]

  1. (f)
    It is further alleged that in or about January 2017 Ms Steenstrup ceased working for the plaintiff after she became aware the plaintiff intended to refuse to pay the first defendant commissions owed by the plaintiff to the first defendant and acted inconsistently with the contract release.[24]It is alleged that Nunzia Confessore ceased to work for the plaintiff in January 2011 and was released from her restraint and non-compete obligations.[25]
  1. (g)
    It is further alleged that on a date after 20 October 2016 there was a conversation between Mr Smart and Mr Powell at the plaintiff’s offices which was overheard by Paul Douglas and which Mr Smart asked Mr Powell to draw up a deed of restraint for the first defendant to sign but Mr Powell said there was no point giving her a restraint because she would not sign it.[26]It alleged that this conversation occurred in circumstances where Mr Smart knew about the contract release.[27]It is further alleged that the defendants took a number of steps in reliance on the contract release by establishing the business of the second defendant.[28]
  1. (h)
    The defendant alleges by reason of undertakings given and orders made on 10 February 2017 the second defendant has suffered a detriment.[29]The defendant alleges by the reliance and detriment the plaintiff is estopped from relying on any obligation concerning the restraint clauses in the contract.[30]
  1. [23]
    I found paragraph 3 not only difficult to read, but contained evidence rather than material facts and argumentative statements best left for the trial. It might also be borne in mind the paragraph was answering an allegation in the further amended statement of claim which was only one A4 page long.
  1. [24]
    Paragraphs 4 and 5 of the defence set out a response to the allegations of the employment set out in paras 6 and 7 of the further amended statement of claim.
  1. [25]
    As to paragraph 13 of the further amended statement of claim, the first defendant admits she gave a notice to the plaintiff to terminate her employment on 22 September 2016.[31]
  1. [26]
    As to paragraph 19 of the further amended statement of claim, the defendants say that the information referred to by the plaintiff was either in the public domain or was information of a kind that was known the recruitment agencies other than the plaintiff.[32]The defendants further say that some information was unique to the plaintiff, the details of which are pleaded in para 10(b) of the defence.
  1. [27]
    The answer to paragraph 21 of the statement of claim is in paragraph 12 of the defence. The allegation in paragraph 21 is simple – it alleges that the first defendant or someone associated with her stole the confidential information.
  1. [28]
    The answer is not simple at all – it is 32 pages long. I consider it prolix, breaches the rules of pleading and pleads evidence rather than material facts. In my view it is arguable it pleads many irrelevant matters, certainly in answer to paragraph 21.
  1. [29]
    In the answer, the defendants:
  1. (a)
    deny that any defendant by any person caused to be accessed on the times and date specified by the first defendant’s login and password the information referred to and further denies she failed to deliver up the said information and further that the first defendant breached any clauses of the contract in relation to the copies information.[33]
  1. (b)
    The plaintiff says that after 7 October 2016 the first defendant has not attended any office of the plaintiff and any other person with her login and password could access her user account through the Citrix system.[34]
  1. (c)
    It is further alleged in paragraphs 12(c)(iii) of the defence that since about May 2016 the plaintiff’s general manager was Damian Smart.[35]
  1. (d)
    There is a variety of apparently irrelevant information concerning Phillip Smart, other Workpac companies, and shareholdings.[36]
  1. (e)
    It is alleged that he was authorised to access all information and make decisions in relation to the plaintiff, but at the time he was appointed general manager, he did not have sufficient experience in and had not received sufficient training to be aware of basic matters.[37]
  1. (f)
    It is further alleged by reason of this lack of experience, there were deficiencies in the plaintiff placing suitable candidates with the clients.[38]
  1. (g)
    In respect of Shelley Lingman, it is alleged that she did not have sufficient training either.[39]
  1. (h)
    It is alleged that she made an admission that she would fake some allocations.[40]
  1. (i)
    It is alleged that a number of parties knew the first defendant’s login details and password and were authorised or capable of being aware of being aware of her login details and password.[41]
  1. (j)
    The first defendant alleges that a verbal altercation occurred between her and Mr Smart on 12 August 2016 at a bar in Fortitude Valley named Sixes and Sevens.[42]
  1. (k)
    It is further alleged that on 15 August 2016, persons accessed the account attributable to the first defendant in the Chilli Max system of the plaintiff and added business expenses to her account.[43]
  1. (l)
    It is alleged that these expenses were added to the first defendant’s accounts by the plaintiff in circumstances where the plaintiff had no genuine or honest belief that most of them had been incurred by the first defendant for the plaintiff and were added for the purpose of:

“Depriving the first defendant of the full amount of the commissions that she was owed for the period between her last commission and 15 August expenses it was entitled to receive and benefiting the plaintiff in an amount equal to what the plaintiff would have otherwise been obliged to pay the first defendant for her commissions for the period between the payment of her last commission and the 15 August expenses less the amount that the plaintiff paid to the first defendant for her commissions dishonestly and fraudulently.”[44]

These were alleged to be the first commission fraud. 

  1. (m)
    It is further alleged that during the period the first defendant was on holidays on 15 September 2016, a person unknown to the defendants but with the authority and capability of accessing the account of the first defendant in the Chilli Max system, a number of expense items were added to her account.[45]
  1. (n)
    It is alleged that these expenses were added by the plaintiff when the plaintiff had no honest or genuine belief they had been incurred by the first defendant and they were added for the purpose of depriving the first defendant of the full amount of her commissions that she was owed for the period after the 15 August expenses and entitled to receive and benefitting the plaintiff, dishonestly and fraudulently.[46]
  1. (o)
    It is further alleged that on 16 September 2016 the first defendant had a meeting with Mr Damian Smart at the Milton office of the plaintiff in which effectively the first defendant alleges Mr Smart threatened to report her to the police and told her, “I will make it go away as long as you promise not to have any further conversations with Pranesh and just hit the road and help me rebuild healthcare to where we both know it should be again.” He alleged that he was giving her a get out of jail free card. He alleged that she was engaged in corporate theft. He then returned with Mr Powell who told her that Mr Smart had informed him that some serious allegations had been brought up and that he had chosen not to proceed with an investigation if she agreed “to go back on the road and do what you do best.”[47]
  1. [30]
    Further as to paragraphs 21(b) and 21(c) of the further amended statement of claim, the first defendant denies that she deleted all contracts and messages from her devices.[48]  
  1. [31]
    As to paragraphs 21(f) and (g) of the further amended statement of claim, the defendants do not admit the allegations.[49]
  1. [32]
    As to paragraph 22(e) of the further amended statement of claim, the defendants deny that there are any breaches of restraint provisions from the contract because of the contract release; admit allegations that clients were placed by her with the Arthur Gorrie Correctional Centre; and denies that she encouraged the plaintiff’s clients to place orders for candidates with the defendants.[50]
  1. [33]
    Further, as to paragraph 22(e)(iv) of the further amended statement of claim, the defendants deny encouraging the plaintiff’s clients to cease doing business with the plaintiff.[51]
  1. [34]
    As to paragraph 22(e)(v) of the further amended statement of claim the defendants deny that they encouraged identified employees to leave the plaintiff’s employ and start in the employ of the defendants.
  1. [35]
    The defendants deny the allegations made in paragraph 22(e)(vi) of the further amended statement of claim because they did not encourage the plaintiff’s candidates or some of them to register as candidates with the defendants.
  1. [36]
    The defendants deny the allegations in paragraph 22(f)(i) and (ii) of the further amended statement of claim because there is no exclusivity agreement between candidates registered to the plaintiff and any agency that competes with the plaintiff.
  1. [37]
    The defendants do not admit the allegations contained in paragraph 24 of the statement of claim because no allegation has been made that clients of the plaintiff are lost because of the alleged breaches, but for the breaches, but for the breaches the plaintiff could not have suffered the loss and there is no connection between the alleged breaches and the loss alleged.
  1. [38]
    A counterclaim has been brought by the first and second defendants against the plaintiff. It is alleged that by the contracts referred to in the further amended statement of claim, the first defendant was entitled to receive the months of August, September and October commissions. It is alleged that approximately $30,000 worth of commissions are owing. It is alleged the plaintiff has no lawful entitlement to withhold the commissions and has failed or neglected to pay them.[52]In the circumstances the plaintiff is liable to pay the amount of commissions.
  1. [39]
    Further it is alleged that the plaintiff is liable to the second defendant for damages as the Plaintiff has breached the contract release and has prevented the second defendant from conducting its business.[53]  

Plaintiff’s Evidence

  1. [40]
    Daniel Davey, principal of Tucker & Cowen Solicitors, has sworn an affidavit filed 14 June 2017.[54]He is an experienced commercial practitioner.  He has caused to be prepared a Schedule of Costs which he believes the plaintiff would incur in defending the counterclaim, calculated at the first day of trial.  The total of the costs set out is approximately $131,000.  He estimates that on a standard basis to the first day of trial, this would be approximately $78,600. 
  1. [41]
    On 17 May 2017, the plaintiff solicitors sent to the defendant solicitors a letter in relation to the security for costs in defending the counterclaim. This letter alleges that the plaintiff had reason to believe the defendants would not be able to pay the plaintiff’s costs of the counterclaim. It points out the affidavit material in the proceedings in which the first defendant deposes she is a single parent with two children aged 6 and 12, she has significant weekly living expenses, she owns no real property, the second defendant is currently trading at a loss and she has incurred about $55,000 in expenses to establish the business. On 10 February 2017 restraint orders were made by the court until 20 April 2017. In the circumstances, the plaintiff sought documentation setting out the defendant’s financial positions and capacity to satisfy any adverse costs orders.
  1. [42]
    The defendant solicitors replied by email on 6 June 2017 advising that there would be a response by close of business 9 June 2017.
  1. [43]
    Also on or about 5 February 2017 a “GoFundMe” internet based fundraising page was created by the first defendant with a fundraising goal of $80,000 to fund the proceedings. A print out is attached.
  1. [44]
    The affidavit of Emily Jane Anderson filed 12 June 2017[55]sets out various searches relating to the defendant companies and also property searches. 
  1. [45]
    There is a further affidavit from Mr Davey filed 26 June 2017.[56]In this affidavit Mr Davey attaches a printout of the GoFundMe page. There is a link to Supreme Nursing. The defence and counterclaim is on this link. As a result of some of the allegations raised in the defence the plaintiff also applied orally for orders that the defence be removed from the website and for the present defence and counterclaim to be uplifted from the file and placed in a sealed envelope.
  1. [46]
    I consider that the defendants should have the opportunity to consider this application and to file material if necessary. I adjourn that application to a date to be fixed.

Defendants’ evidence

  1. [47]
    James Lavercombe has sworn an affidavit dated 28 June 2017.[57]In this affidavit he exhibits letters between himself and the plaintiff’s solicitors pointing out that there was no basis for the application for security for costs.
  1. [48]
    The plaintiff submits I should place little weight on this affidavit.
  1. [49]
    Ms Rovic has sworn an affidavit dated 28 June 2017.[58]In this affidavit she swears that the defendants do not have any profits from money received in respect of placements. About $60,000 was paid to nurses; $2000 for payroll tax; $13,000 for wages (to her); $13,000 for insurance and the balance in expenses. She swears the second defendant has no money, none of the defendants have assets and if the second defendant is ordered to pay security it will stifle the proceedings brought by counterclaim
  1. [50]
    The plaintiff submits I should place little weight on this affidavit bearing in mind Ms Rovic was permitted to engage in this industry provided it did not breach the terms of the injunction and fully since April 2017. It submits scant detail is provided.

Application to strike out the defence and counterclaim

  1. [51]
    The plaintiff submits[59]that the entirety of the defence and counterclaim should be struck out or alternatively large parts of it should be struck out. In essence it is submitted the pleading is prolix. It is alleged the plaintiff has to navigate a labyrinth of allegations here. 
  1. [52]
    It is alleged it runs to 60 pages offering an imprecise narrative and difficult to follow. It is unintelligible and confused. It points out that paragraph 12 of the defence covers 32 pages and some paragraphs extend to sub-sub-sub-sub-sub-sub-sub paragraphs. It pleads evidence rather than material facts. It submits it is unsalvageable.
  1. [53]
    Alternatively it is submitted that the defective paragraphs should be struck out. Until the pleadings are regularised the application for particulars and for the production of documents is not pressed.
  1. [54]
    In oral submissions the plaintiff submitted:
  1. (a)
    Paragraph 12 is imprecise and unfair;
  1. (b)
    UCPR 149 (1) (a) has been breached;
  1. (c)
    The entirety should be struck out as it will become “dysfunctional” otherwise;
  1. (d)
    Scandalous material is pleaded.
  1. [55]
    As to the strikeout application the defendant submits[60]that it does not need to provide many of the particulars sought by the plaintiff. In effect it pleads that the pleading is not defective and sufficient. 
  1. [56]
    In oral submissions the defendants submitted:
  1. (a)
    It was conceded as to paragraph 3, there were difficulties referring to the affidavit;
  1. (b)
    But the other matters put in context the defence e.g. countering the improbability of the release allegation;
  1. (c)
    That it was necessary to plead all matters so material could be discovered;
  1. (d)
    The further amended statement of claim itself was not brief;
  1. (e)
    The pleading was not prolix or scandalous.
  1. [57]
    In reply the plaintiff submitted:
  1. (a)
    Odgers’ on pleadings is relevant;
  1. (b)
    It is not permissible to plead evidence to undermine “credibility”;
  1. (c)
    One cannot plead matters to for the sole purpose of achieving disclosure;
  1. (d)
    There is an abuse of process here.

Disposition

  1. [58]
    I consider it appropriate to consider the strikeout application first. For the reasons which follow, I consider I should give a decision as to this application prior to any order for the delivery of further particulars or orders for inspection of documents. The pleadings need to be put in order first.
  1. [59]
    The strikeout application is brought under UCPR r 171. This rule provides:

“Striking out pleadings

  1. (1)
    This rule applies if a pleading or part of a pleading—
  1. (a)
    discloses no reasonable cause of action or defence; or
  1. (b)
    has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. (c)
    is unnecessary or scandalous; or
  1. (d)
    is frivolous or vexatious; or
  1. (e)
    is otherwise an abuse of the process of the court.  
  1. (2)
    The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
  1. (3)
    On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”
  1. [60]
    When considering a strikeout application I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq)[61]where his Honour said: 

“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ or a ‘demonstrated certainty of outcome’.”

  1. [61]
    Also the court needs to consider whether the facts pleaded are capable in law of giving rise to the relief sought.[62]
  1. [62]
    The following must also be noted:
  1. (a)
    The cardinal rule is that pleadings must clearly and briefly identify the case to be met at trial, stating only the material facts;[63]
  1. (b)
    Material facts are not the evidence of those facts[64]but only those facts necessary to establish the defence;[65]
  1. (c)
    The effect of a document of conversation must be pleaded as briefly as possible, although sometimes the precise words are material;[66]
  1. (d)
    Long pleadings can be the antithesis of the material facts model;[67]
  1. (e)
    Indeed a prolix pleading may become an embarrassing one; 
  1. (f)
    Narrative pleadings may fall into the error of introducing facts (material or otherwise) that render the pleading unclear and imprecise.[68]
  1. (g)
    The function of a pleading is to let the parties know exactly what matters are in dispute; and to ascertain with precision the matters on which they agree. The material facts must be pleaded and the immaterial ones omitted.[69]
  1. (h)
    Facts should be alleged as facts and it is not necessary to plead circumstances which merely tend to prove the truth of the facts already alleged. It is not necessary to plead evidence sustaining the allegation unless material.[70]
  1. [63]
    I agree with the plaintiff’s submissions here as to the defendant’s pleading. This pleading is overly long, confusing, pleads evidence, and in many respects does not answer the plaintiff’s allegations. Some of it answers the further amended statement of claim, but I consider there are so many defects it is not salvageable and should be entirely re-pleaded so as to comply with the rules.
  1. [64]
    I consider Jackson J’s statements in Mio Art Pty Ltd v Macequest Pty Ltd[71]to be particularly appropriate in this case as follows:

“[60] This illustrates why and emphasises that, in a case of complexity, it is critical that the pleading allege “all the material facts... but not the evidence by which the facts are to be proved.” Otherwise, the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action. Drowning often follows, at the expense of the intent under UCPR 5 that the proceeding be conducted to “facilitate the just and expeditious resolution of the real issues... at a minimum of expense” and the requirement that “each pleading must... be as brief as the nature of the case permits” under UCPR 149(1)(a).

[62]  But where a pleading alleges a lengthy historical account of facts that occurred over an extensive period of a commercial relationship, then particular specific causes of action are pleaded on the basis that the reader is invited to find the relevant material facts for any cause of action in all that has gone before, the price for the death of that hero, brevity, is not paid in the valuable coin of precision. Instead, the reader is invited on a would-be treasure hunt, with the unlikely satisfaction that after looking in every nook and cranny, and trying every combination possible, there will be an Archimedian “Eureka” moment.”

  1. [65]
    I consider the pleading in this case at the least has a tendency to prejudice or delay the fair trial of the proceeding.[72]
  1. [66]
    Further or in the alternative if required to strike out particular paragraphs I find as follows.
  1. [67]
    As to paragraph 3(c)-(n) of the defence, I consider these paragraphs should be struck out. Paragraph 3(c) refers to evidence extraneous to the pleading and the balance of the sub-paragraphs plead evidence and are argumentative (see e.g. 3(f)(iv), 3(g)(ii)). The sub-paragraphs are interrelated and make no sense unless re-pleaded in its entirety. It would not be too difficult or lengthy to plead the alleged contractual release under the rules.
  1. [68]
    As to paragraph 4(c)(ii) of the defence, I consider the paragraph should be struck out as there is no direct explanation as to why she believes the allegation to be untrue. The purpose alleged by her is immaterial as well.
  1. [69]
    As to paragraph 5(b) of the defence, I strike out the reference to the “Inconsistent BDM Pleading” as this is argumentative. This flows onto 5(d)(i) and it is struck out. As to 5(d)(ii) this is struck out. There is an insufficient basis to plead a non-admission when that information is within the means of knowledge of the defendant.
  1. [70]
    As to paragraph 5(c)(i) and 5(e)(iv) of the defence, I consider the paragraphs do not respond to the allegation as to securing clients “before” May 2016. It is also confusing. I strike them out.
  1. [71]
    As to paragraph 5(e)(ii) of the defence, I do not consider the answer sufficiently traverses paragraph 7(a)(iii)(2) of the further amended statement of claim. I strike it out.
  1. [72]
    As to paragraph 5(e)(iii) of the defence, this flows on from the “inconsistent BDM Pleading” allegation and I do not consider the answer sufficiently traverses paragraph 7(b)(ii). I strike it out.
  1. [73]
    As to paragraph 5(f)(i) of the defence, I do not consider this sufficiently traverses paragraph 7(b)(iii)(1) of the further amended statement of claim. I strike out the paragraph.
  1. [74]
    As to paragraph 5(g) of the defence, I consider this does not provide a direct explanation and is confusing. I strike out this paragraph.
  1. [75]
    As to paragraph 5(j) of the defence, this paragraph is inconsistent with para 5(c)(ii) but is not pleaded as an alternative. I strike it out.
  1. [76]
    As to paragraph 5(k)(ii) of the defence, for the reasons given concerning paragraph 5(e)(iii) of the defence, do not consider it sufficiently traverses paragraph 7(b)(v)(2) of the further amended statement of claim.
  1. [77]
    As to paragraph 5(k)(iii) of the defence I consider the defendants do not sufficiently answer paragraph 7(b)(v)(2) of the further amended statement of claim. I strike out this paragraph.
  1. [78]
    As to paragraph 6(b) of the defence, a party is entitled to plead as the plaintiff has concerning the contract in paragraph 9 of the further amended statement of claim. I strike out this paragraph.
  1. [79]
    As to paragraph 7 of the defence, the paragraph does not provide an explanation as to why the plaintiff’s allegation is untrue. I strike out this paragraph.
  1. [80]
    As to paragraph 8(b) of the defence, I consider that this paragraph reaches an argumentative conclusion as to an alleged monopoly. Without more it raises a false issue. The paragraph does not provide a direct clear response. I strike out this paragraph.
  1. [81]
    As to paragraph 8(c)(i) of the defence, I consider that this does not sufficiently answer paragraph 11(c)(ii)(2) of the further amended statement of claim. It is confusing. I strike out this paragraph.
  1. [82]
    As to paragraph 8(c)(ii) of the defence, for the reasons given concerning 8(b) of the defence, because the pleading raises unexplained false issues such as alleged undisclosed related tendering. It is confusing. I consider the paragraph should be struck out.
  1. [83]
    As to paragraph 9(b) of the defence, I consider the answer does not provide a direct or clear explanation as to the defendants’ belief. I strike it out.
  1. [84]
    For the same reasons the words “subject to undisclosed related tendering” should be struck out from paragraph 10(a)(I) of the defence.
  1. [85]
    As to paragraph 11(e) of the defence, I consider that the paragraph does not fully answer the allegations in paragraph 20 of the further amended statement of claim. It is also not clear. I strike it out.
  1. [86]
    As to paragraph 12 of the defence, I consider the pleading is prolix- it answers only 3 subparagraphs of the further statement of claim and yet runs for some 32 pages. I consider it confusing and embarrassing and strike it out. It needs to be substantially recast to comply with the rules of pleading.
  1. [87]
    As to 13(a), (b) and (c) of the defence, I consider the paragraph does not provide an explanation for the defendants’ belief. I strike them out.
  1. [88]
    As to paragraph 13(d) of the defence, it is not possible to deny and alternatively not admit an allegation. I strike it out.
  1. [89]
    As to paragraph 15(a) of the defence, because I have struck out large parts of paragraph 3, the pleading does not make sense.
  1. [90]
    As to paragraph 1(a) of the counterclaim there are insufficient material facts pleaded justifying the conclusion the first defendant was entitled to commissions. I strike it out.
  1. [91]
    As to paragraph 1(b) of the counterclaim, I consider this needs to be re-pleaded. It needs to be recast to make it intelligible. I strike it out.
  1. [92]
    I consider paragraphs 2, 3 and 4(a) of the counterclaim plead evidence. I strike them out.
  1. [93]
    I consider paragraphs 5-8 do not plead material facts. They anticipate a defence to the first defendant’s claim. I strike them out.
  1. [94]
    I strike out paragraph 11. A court order does not cause breach. A party breaches a contract. Causation needs to be pleaded.[73]There is an absence of facts as to causation. It needs to be re-pleaded. I strike it out.
  1. [95]
    But as I said earlier I consider the pleading unsalvageable in its present form.
  1. [96]
    I will allow the defendant 28 days to re-plead.
  1. [97]
    I agree with the plaintiff that a final pleading with all of the amendments would be a confusing document.
  1. [98]
    I will order the defendant to file a fresh copy of the final pleading.[74]    

Application for security for costs

Submissions

  1. [99]
    The plaintiff submits that an order for security should be made. It submits that the means of standing behind the second defendant are not in evidence; the bona fide of the proceedings is doubtful; the defendants are impecunious, and the amount of the security is not unreasonable.
  1. [100]
    The defendants submit that no order should be made against the first defendant; the issues involved in the counterclaim are limited, the second defendant does not have assets to pay the security which was caused by the plaintiff and an order would stifle the litigation.

Submissions

Disposition

  1. [101]
    Rule 670 of the Uniform Civil Procedure Rules 1999 (Q) provide a discretionary power on the court to order payment of security for costs having regard to the prerequisites contained in r 671 and the discretionary factors in r 672.
  1. [102]
    The rules provide:

“671  Prerequisite for security for costs

The court may order a plaintiff to give security for costs only if the court is satisfied— 

  1. (a)
    the plaintiff is a corporation and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them; or 
  1. (b)
    the plaintiff is suing for the benefit of another person, rather than for the plaintiff’s own benefit, and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them; or
  1. (c)
    the address of the plaintiff is not stated or is misstated in the originating process, unless there is reason to believe this was done without intention to deceive; or
  1. (d)
    the plaintiff has changed address since the start of the proceeding and there is reason to believe this was done to avoid the consequences of the proceeding; or 
  1. (e)
    the plaintiff is ordinarily resident outside Australia; or
  1. (f)
    the plaintiff is, or is about to depart Australia to become, ordinarily resident outside Australia and there is reason to believe the plaintiff has insufficient property of a fixed and permanent nature available for enforcement to pay the defendant’s costs if ordered to pay them; or
  1. (g)
    an Act authorises the making of the order; or
  1. (h)
    the justice of the case requires the making of the order. 

672 Discretionary factors for security for costs

In deciding whether to make an order, the court may have regard to any of the following matters—

  1. (a)
    the means of those standing behind the proceeding;
  1. (b)
    the prospects of success or merits of the proceeding; 
  1. (c)
    the genuineness of the proceeding;
  1. (d)
    for rule 671(a)—the impecuniosity of a corporation;
  1. (e)
    whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct;
  1. (f)
    whether the plaintiff is effectively in the position of a defendant;
  1. (g)
    whether an order for security for costs would be oppressive;
  1. (h)
    whether an order for security for costs would stifle the proceeding;
  1. (i)
    whether the proceeding involves a matter of public importance;
  1. (j)
    whether there has been an admission or payment into court;
  1. (k)
    whether delay by the plaintiff in starting the proceeding has prejudiced the defendant;
  1. (l)
    whether an order for costs made against the plaintiff would be enforceable within the jurisdiction;
  1. (m)
    the costs of the proceeding.”
  1. [103]
    In Natcraft P/L & Anor v Det Norske Veritas & Anor,[75]Jerrard JA at [9] and [10] stated:

“The respondents’ application for security for costs is brought pursuant to r 772 of the Uniform Civil Procedure Rules 1999 (Qld). A number of decided cases have established matters which are relevant on such applications. These include: 

  • The appellants’ prospects of success on the appeal (see Banks v Copas Newham Pty Ltd). 
  • The financial position of the appellants. Where an appellant is without funds or assets this factor is important, and provides what this court has described as a ‘persuasive’ reason for ordering security for costs. This is because that appellant would be unable to satisfy any order for costs made against the appellant should the appeal be unsuccessful (see Banks (supra) and Ivory v Telstra Corp Ltd). 
  • The fact an impecunious appellant, impecunious at trial, has already had a ‘day in court’ and lost on the merits. That circumstance increases rather than reduces the likelihood of the exercise of a discretion in favour of an order for security for costs (see Ivory (supra)). 
  • The fact that the appellant blames impecuniosity on a respondent who asks for orders for security for costs. This matter has a diminished significance an appellant level, by contrast with its significance at trial level (see de Jersey CJ Jackson v Coal Resources of Queensland Ltd). 
  • That it is inappropriate to order an impecunious appellant to provide a greater security than is absolutely necessary (see Young CJ in Commonwealth Bank of Australia v Eise). 
  • That the giving of a personal undertaking by one who stands behind a company does not preclude an order for security for costs (see Intercraft Covenant Pty Ltd v Sampas Pty Ltd). 
  • Whether there has been any delay in bringing the application for security for costs. 

The central issue where there has not been delay is well summarised in the judgment of Malcolm CJ in Intercraft (supra), wherein His Honour said at page 316 that the application has to be looked at in the light of all relevant considerations, including the merits of the action and whether the ordering of security will stifle an action which has some apparent merit.” 

  1. [104]
    In this case it is not possible yet to see the nature of a properly pleaded counterclaim so as to make a proper assessment of the likely costs involved as compared to the main claim.
  1. [105]
    I propose to adjourn that application until after the pleadings have been finalised.

Conclusion

  1. [106]
    For the reasons given I make the following orders:
  1. I strike out the defence and counterclaim.
  1. I allow the defendants 28 days to re-plead. 
  1. I order the defendant to file and serve a fresh copy of the pleading without the struck-out paragraphs.
  1. I adjourn the plaintiff’s application for the defence and counterclaim to be removed from www.supremenursing.com.au and for the document to be placed in a sealed envelope to a date to be fixed.
  1. I adjourn the plaintiff’s application for security for costs to a date to be fixed.
  1. I will hear the parties on the question of costs.

Footnotes

[1]Document 23, Further Amended Statement of Claim, para 2.

[2]Document 23, Further Amended Statement of Claim, para 4.

[3]Document 23, Further Amended Statement of Claim, para 5A.

[4]Document 23, Further Amended Statement of Claim, para 5B.

[5]Document 23, Further Amended Statement of Claim, para 6.

[6]Document 23, Further Amended Statement of Claim, para 7.

[7]Document 23, Further Amended Statement of Claim, para 10.

[8]Document 23, Further Amended Statement of Claim, para 11.

[9]Document 23, Further Amended Statement of Claim, paras 13 and 14.

[10]Document 23, Further Amended Statement of Claim, paras 15 and 16.

[11]Document 23, Further Amended Statement of Claim, para 17.

[12]Para 20 of the Further Amended Statement of Claim.

[13]Para 21 of the Further Amended Statement of Claim.

[14]Para 22 of the Further Amended Statement of Claim.

[15]Para 22 of the Further Amended Statement of Claim

[16]Para 22(f) of the Further Amended Statement of Claim.

[17]Para 23 of the Further Amended Statement of Claim.

[18]Para 24 of the Further Amended Statement of Claim

[19]Document 35, Defence. This is now amended but not in a material way to this material. My findings relate to both defences.

[20]Document 35, Defence, para 3(c).

[21]Document 35, Defence, para 3(d).

[22]Document 35, Defence, para3(e).

[23]Document 35, Defence, para 3(f).

[24]Document 35, Defence, para 3(g).

[25]Document 35, Defence, para 3(h).

[26]Document 35, Defence, para 3(i).

[27]Document 35, Defence, para 3(j).

[28]Document 35, Defence, para 3(k).

[29]Document 35, Defence, para 3(l).

[30]Document 35, Defence, para 3(n).

[31]Document 35, Defence, para 9.

[32]Document 35, Defence, para 10(a).

[33]Document 35, Defence, para 12(a).

[34]Document 35, Defence, para 12(b)–(c).

[35]Document 35, Defence, para 12 (c) (iii)(A).

[36]Document 35, Defence, para 12 (c) (iii) (A).

[37]Document 35, Defence, para 12(c)(iii)(A)(X).

[38]Document 35, Defence, para 12(c)(iii)(A)(X)(1)-(2).

[39]Document 35, Defence, para 12(c)(iii)(X)(C).

[40]Document 35, Defence, para 12 (c)(iii)(X)(C)(IV)(4).

[41]Document 35, Defence, para 12(c)(iii)(X)(F).

[42]Para 12(c)(iii)(X)(I) of the Defence.

[43]Para 12(c)(iii)(X)(J) of the Defence.

[44]Para 12 (c)(iii)(X)(J)-(K)(IX) of the Defence.

[45]Para 12 (c)(iii)(X)(K)(IX)(iv)(E)-(F) of the Defence.

[46]Para 12 (c)(iii)(X)(K)(IX)(iv)(F)(IX) of the Defence.

[47]Document 35, Defence, para 12(c)(iii)(X)(I)-(II).

[48]Document 35, Defence, para 13.

[49]Document 35, Defence, para 14.

[50]Document 35, Defence, para 15.

[51]Document 35, Defence, para 16.

[52]Document 35, Counterclaim, para 8.

[53]Document 35, Counterclaim, para 11.

[54]Document 62, Affidavit of Daniel Gregory Arthur Davey, filed 14 June 2017.

[55]Document 57, Affidavit of Emily Jane Anderson, filed 12 June 2017.

[56]Document 64, Affidavit of Daniel Gregory Arthur Davey, filed 26 June 2017.

[57]Affidavit filed by leave on 28 June 2017.

[58]Affidavit filed by leave on 28 June 2017.

[59]Exhibit 1 - Plaintiff’s written submissions.

[60]Exhibit 3 - defendants’ written submissions.

[61][2011] QCA 162 at [13].

[62]Coco v Ord Minnett Ltd [2012] QSC 324 at [18].

[63]Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583; [2013] QSC 211 at [65].

[64]UCPR r 149.

[65]Australian Automotive Repairers’ Association v NRMA Insurance Ltd [2002] FCA 1568 at [13].

[66]UCPR r 152.

[67]Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 [2013] QSC 211 at [58]-[67].

[68]Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 [2013] QSC 211 at [58]-[67] and [71].

[69]Odgers on Pleadings 19th ed. 1966 at pp 74-75.

[70]Ibid, pp 98-99

[71](2013) 95 ACSR 583; [2013] QSC 211.

[72]Rule 171 (1)(b).

[73]Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15].

[74]UCPR r 382(7).

[75][2002] QCA 241.

Close

Editorial Notes

  • Published Case Name:

    WorkPac Healthcare Pty Ltd v Branka Rovic, Supreme Nursing Pty Ltd, Principissa Bellatricus Pty Ltd & Elite Duce Pty Ltd

  • Shortened Case Name:

    WorkPac Healthcare Pty Ltd v Rovic & Ors (No 3)

  • MNC:

    [2017] QDC 188

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    14 Jul 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Automotive Repairers' Association v NRMA Insurance Ltd [2002] FCA 1568
2 citations
Jump To
Cite 1 - [2002] FCA 1568
Cite 2 - [2002] FCA 1568
Coco v Ord Minnett Ltd [2012] QSC 324
2 citations
Jump To
Cite 1 - [2012] QSC 324
Cite 2 - [2012] QSC 324
Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211
5 citations
Jump To
Cite 1 - [2013] QSC 211
Cite 2 - [2013] QSC 211
Cite 3 - [2013] QSC 211
Cite 4 - [2013] QSC 211
Cite 5 - [2013] QSC 211
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (2013) 95 ACSR 583
5 citations
Jump To
Cite 1 - (2013) 95 ACSR 583
Cite 2 - (2013) 95 ACSR 583
Cite 3 - (2013) 95 ACSR 583
Cite 4 - (2013) 95 ACSR 583
Cite 5 - (2013) 95 ACSR 583
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
2 citations
Jump To
Cite 1 - [2002] QCA 241
Cite 2 - [2002] QCA 241
Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
2 citations
Jump To
Cite 1 - [2011] QCA 162
Cite 2 - [2011] QCA 162
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457
2 citations
Jump To
Cite 1 - [2004] QSC 457
Cite 2 - [2004] QSC 457

Cases Citing

Case NameFull CitationFrequency
WorkPac Healthcare Pty Ltd v Rovic (No 4) [2017] QDC 2181 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.