WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2023 WAIRC 00732

DELIVERED : WEDNESday, 16 August 2023

FILE NO. : M 55 OF 2022

CLAIMANT

AND

Zenitas Healthcare Pty Ltd ACN 009 074 588

FIRST RESPONDENT

AND

APM Lifecare Trusco Pty Ltd

SECOND RESPONDENT

CatchWords : Industrial Law (WA) – Long Service Leave Act 1958 (WA) – Fair Work Act 2009 (Cth) – Claimant’s application for leave to further amend the Amended Originating Claim and adjourn hearing of strike out application – Claimant’s failure to comply with programming of strike out application – Claimant’s application not supported by a minute of proposed amendments – Unable to assess whether the orders proposed will have any utility – Claimant’s application dismissed – Respondent’s application to strike out Amended Originating Claim – Principles applying in strike out applications – Multiple claims of transfer of business to establish continuous service for long service leave claim – Failure to detail material facts for transfer of business – Failure to detail material facts for accrual of entitlements claimed – Claim for payment in lieu of notice embarrassing – Respondent made out a proper basis to strike out Originating Claim in its entirety – Whether leave should be granted to replead Amended Originating Claim – Leave granted to re‑plead annual leave and long service leave – Respondent’s application granted in part

Legislation : Fair Work Act 2009 (Cth)

Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)

Long Service Leave Act 1958 (WA)

Case(s) referred to

in reasons : Byrne & Frew v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

Jones v Odyssey Marine Pty Ltd [2020] WAIRC 00118; (2020) 100 WAIG 188

Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; (1995) 62 IR 200

Quirk v Construction Forestry Maritime Mining and Energy Union [2021] FCA 1587; 398 ALR 39

Vantage Holdings Group Pty Ltd v Donnelly (No 4) [2019] WASC 398

Weddall v Rasier Pacific Pty Ltd [2023] FCA 59

Result : Claimant’s application dismissed

Respondent’s application granted in part

Representation:

Claimant : Ms K. Walawski (of counsel)

Respondents : Mr T. Lettenmaier (of counsel)

REASONS FOR DECISION

(This decision was delivered extemporaneously on 16 August 2023 and has been edited from the transcript to correct matters of grammar, add headings and include complete references.)

1         These reasons deal with two interlocutory applications heard by the Industrial Magistrate’s Court on 16 August 2023: the respondents’ application filed on 16 June 2023 to strike out the Amended Originating Claim and the claimant’s application filed on 2 August 2023 to adjourn the hearing of the respondent’s application and for leave to further amend the Originating Claim.

2         I dealt with the claimant’s application first.

Claimant’s Application for leave to further amend the Originating Claim

3         On 2 August 2023, which was the day that the claimant was due to file submissions in opposition to the respondents’ application to strike out the Originating Claim, the claimant filed an application which effectively sought:

(a) leave to file a further Amended Originating Claim;

(b) to adjourn the respondents’ strike out application, which was listed for 16 August 2023; and

(c) to program any further application to strike out which might follow.

4         Very unusually, the application was not supported by a minute of proposed Amended Originating Claim or a Substituted Originating Claim.

5         The application was supported by an affidavit sworn by Georgina Thomas on 2 August 2023. It recites various matters of procedural history, frankly acknowledging that the strike out application was filed some time ago, on 16 June 2023, and that the hearing of the strike out application was originally listed for 2 August 2023.

6         The claimant was originally due to file responsive materials on 24 July 2023, which was extended by consent to 28 July 2023.

7         Apparently, on 18 July 2023, another solicitor at Ms Thomas’ firm spoke to counsel, who advised that counsel was unable to commence work on the matter until the week of 24 July 2023. Ms Thomas then met with counsel on 28 July 2023, having secured an indication from the respondents’ solicitors that they would agree to a further extension to 2 August 2023 for the filing of responsive documents.

8         The outcome of Ms Thomas’ meeting with counsel was not the production of the documents due to be filed on 2 August 2023, nor was it the production of any proposed Amended or Substituted Originating Claim. Rather, a letter to the respondents was produced on 31 July 2023. The letter makes comments on the strike out application to the effect that the Originating Claim may contain some deficiencies, but it discloses a cause of action, and so the claimant ought to be afforded an opportunity to re‑plead his case.

9         The 31 July 2023 letter states:

It is intended that the further amended originating claim will be delivered to cure any alleged defects and therefore avoid the need for the Strike‑Out Application and a listed hearing on 16 August 2023.

10      It does not specify what pleadings were conceded to be deficient, although the claimant has again conceded today that there are deficiencies. Nor did the letter indicate how the deficiencies would be re‑pleaded.

11      The letter proposed consent orders be made for leave to file a further Amended Originating Claim and vacating the hearing of the strike out application.

12      The claimant has amended the Originating Claim twice already. He has had ample time to consider the strike out application. Issues which are at the heart of the strike out application were raised at the initial hearing in March 2023. This is in the context of employment that ended in 2020 and claims that date back to 1990.

13      Because the claimant has not produced a minute of proposed further Re‑Amended Originating Claim, I cannot assess whether the orders he proposed will have any utility. Indeed, the fact that no minute was produced causes me to be concerned that the claimant is realistically not in a position to file any further re‑amended pleading that will aid in the efficient and expeditious resolution of this matter.

14      The claimant’s affidavit in support, also emphasises the lack of conferral prior to the application to strike out being brought.

15      That doesn’t change my conclusion. Conferral is a means to an end, the end being efficient case management. Conferral can do the opposite and cause costs to escalate and administration of justice to be delayed. If the letter of 31 July 2023 is illustrative of the claimant’s approach to conferral, then I suspect that conferral would have achieved very little. The correspondence is vague and does no more than prolong what is unresolved. The claimant simply needs to get on with making his case understandable.

16      I therefore decline to grant leave to re‑amend the Originating Claim on this application when I have no idea what the proposed amendments are and have no way of being satisfied that they will resolve the strike out application.

Respondents’ Strike Out Application

17      The respondents apply for an order striking out the Amended Originating Claim in its entirety and dismissing the claim.

18      This Court has power to make an order striking out the claim. Regulation 7 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) in particular, is sufficiently broad to enable the orders that are sought to be made.

19      The principles that apply in relation to an application to strike out were recently summarised by her Honour Smith J, in Vantage Holdings Group Pty Ltd v Donnelly (No 4) [2019] WASC 398 at [60], and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47:

…

(a) the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;

(b) a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;

(c) a statement of claim must state specifically the relief or remedy claimed;

(d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;

(e) in alleging no reasonable cause of action:

(i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and

(ii) ‘reasonable’ means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;

(f) the mere fact that a case appears weak is not of itself sufficient to strike out the action;

(g) in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;

(h) provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment’

(i) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and

(j) irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues. (citations omitted)

20      Relevant to the Industrial Magistrates Court, this Court is not a superior court of record. While the parties are entitled to know the case put against them, the applicable court rules do not require the rules of pleading to be followed: Jones v Odyssey Marine Pty Ltd [2020] WAIRC 00118; (2020) 100 WAIG 188, per Scaddan IM.

21      It is also useful to refer to Snaden’s J summary in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59 at paragraphs [69] ‑ [70], about what constitutes a material fact and when a pleading is embarrassing. A ‘material fact’ is one the proof of which is essential to the existence of a cause of action or defence that the party seeks to advance. A pleading is ‘embarrassing’ to the extent that it is unintelligible, ambiguous, vague or too general so as to embarrass the opposite party who does not know what is alleged against it. Embarrassing pleadings are those which are susceptible to various meanings or contain inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made attempting to increase expense.

22      Finally, where extensive passages within a pleading are liable to be struck out, it is within the Court’s discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh.

Background and General Observations

23      In these reasons, I use the phrase ‘statement of claim’ as shorthand to refer to the way the claim is articulated in annexure A and annexure B of the Amended Originating Claim.

24      In short, in his statement of claim, the claimant alleges a 30‑year continuous period of employment with a business known as ‘LifeCare’ from 5 February 1990 to 28 February 2020. From that period of continuous employment, he alleges he is entitled to:

(a) payment in lieu for accrued and untaken long service leave;

(b) payment in lieu for accrued and untaken annual leave, and

(c) payment in lieu of notice in addition to the notice of termination he was given.

25      The statement of claim comprises 29 paragraphs, which recite a history of the various working arrangements, contractual terms, and amendments to contracts during that 30‑year period, followed by a bare claim for the relief in annexure B. The vast bulk of the statement of claim appears to attempt to set out material facts in relation to some elements of the claim, namely, the identity of the purported employers, the terms of the purported contracts of employment, and continuous service.

26      Nowhere, though, is there a statement of the material facts which give rise to the claimed entitlements beyond these primary matters. For instance, there’s no statement concerning what leave was or was not taken so as to establish an accrued entitlement at any point in time. The statement of claim does say, unnecessarily repetitively, that on alleged transfer occasions, the claimant was not paid any accrued entitlements. But we do not know if he had any accrued entitlements to be paid. So, the fact he was not paid is a conclusion without facts to establish it.

27      The deficiencies go further. I will address them under the separate issues that arise in the proceedings.

Elements of the Long Service Leave Claim: Continuous Employment

28      Although the statement of claim does not expressly identify the source of the claim for payment in lieu of accrued long service leave, it is implicit that the claim is made pursuant to s 9(2)(c) of the Long Service Leave Act 1958 (WA) (LSL Act), which provides that an employee who has completed at least 10 years of continuous employment is entitled to an amount of long service leave on termination of employment based on 8 2/3 weeks for 10 years of continuous employment.

29      There is a contest in these proceedings as to whether the claimant is or was an employee, which is the first qualification for the entitlement. That issue does not directly bear on the current application.

30      The claimant’s statement of claim alleges that he was first employed by either the first or second respondents on 30 December 2016. His purported employment ended on 28 February 2020; therefore, he would not have had 10 years’ continuous service with the first or second respondents in the ordinary sense of the phrase ‘continuous service’ to qualify for any long service leave entitlement.

31      Again, although not expressly stated, it is also implicit in the statement of claim that the claimant relies on the LSL Act’s extended definition of ‘continuous service’ relating to transfers of business contained in s 7H of the LSL Act and that periods of purported employment with entities prior to December 2016 should count towards his period of continuous service. The statement of claim alleges that there were four transfer occasions, presumably meaning transfers of business for the purposes of s 7H of the LSL Act.

32      Section 7H, provides:

For the purposes of this Act, on a transfer of business —

(a) a transferring employee’s employment before and after the transfer is taken to be a single period of continuous employment; and

(b) the new employer is taken to have been the transferring employee’s sole employer for the entire period.

33      Section 7E sets out when a transfer of business is deemed to occur for the purpose of s 7H:

There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied —

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer.

34      What is a ‘connection between an old employer and new employer’ is defined in s 7G:

(1) There is a connection between the old employer and the new employer if, in accordance with an arrangement between them, the new employer owns or has the beneficial use of some or all of the assets (whether tangible or intangible) that —

(a) the old employer owned or had the beneficial use of; and

(b) relate to, or are used in connection with, the transferring work.

(2) There is a connection between the old employer and the new employer if, because the old employer has outsourced the transferring work to the new employer, the transferring work is performed by 1 or more transferring employees as employees of the new employer.

(3) There is a connection between the old employer and the new employer if —

(a) because the new employer had outsourced the transferring work to the old employer, the transferring work had been performed by 1 or more transferring employees, as employees of the old employer; and

(b) because the new employer has ceased to outsource the work to the old employer, the transferring work is performed by those transferring employees, as employees of the new employer.

(4) There is a connection between the old employer and the new employer if the new employer is a related body corporate of the old employer when the transferring employee becomes employed by the new employer.

35      So, to establish continuous service for each transfer occasion, the claimant must establish, relevantly:

(a) That the employment was terminated by one employer.

(b) That within three months after termination, he was employed by another employer.

(c) The work he performed for the new employer was the same or substantially the same as the work he performed for the old employer.

(d) The new employer owns or has the beneficial use of or some or all of the assets that the old employer owned or had beneficial use of.

(e) Those assets relate to or are used in connection with the transferring work.

36      The statement of claim does not specify the connection between old employers and new employers that the claimant relies upon. I am assuming that the claimant does not rely on the outsourcing, insourcing or related bodies corporate connections.

37      In paragraph 19 of their written submissions, the respondents articulate the requirements for establishing continuous service slightly differently to how I have set them out above. I do not agree with the respondents that there is a requirement for the claimant to become an employee of the ‘transmittee’ at the time of ‘transmission of business’. Rather, the material timing is the date of termination and the date of new employment.

38      In addition to establishing continuous service, the claimant must also establish what leave was accrued in the period of continuous service, accounting for periods of leave taken, and his rate of ordinary pay at the time of termination.

First Transfer Occasion

39      Paragraphs 5 and 6 of the statement of claim deal with the first transfer occasion in these terms:

5. On or around 6 December 1999 LifeCare Corporation listed as a public company and became LifeCare Health Ltd ACN 083 519 377 (“LifeCare Health”), which entity then owned and operated the LifeCare Business.

6. Shortly prior to 6 December 1999, Claimant entered into an oral contract of employment (“Third Contract”) with LifeCare Health (“First Transfer Occasion”).

40      These paragraphs do not disclose material facts establishing a transfer of business. They are internally inconsistent. The first sentence says that the old employer listed, which would not involve any transfer of business at all, because the same entity continues to be the employer. The second sentence vaguely suggests a transfer of assets by its reference to the entity then owning and operating the LifeCare Business.

41      This makes the paragraphs embarrassing in the sense that they cannot sensibly be responded to, tested or tried.

42      If the paragraph is intended to suggest a transfer of assets, namely, the LifeCare Business, whatever that is, from one entity to another, then it does not disclose the following material facts:

(a) that the employment with LifeCare Corporation, being the first employer, was terminated;

(b) on what date employment with LifeCare Corporation was terminated; and

(c) the date of commencement of employment with the new employer, LifeCare Health.

43      The problem is more serious, though. It puts the date of acquisition of the LifeCare Business as 6 December 1999, but the date of an employment contract as shortly prior to that date. I note that the date of employment contract is actually not material. What is material is the date of commencement of employment, and this material fact is not stated.

44      In short, the claimant fails to detail the material facts necessary to establish a transfer of business from LifeCare Corporation to LifeCare Health. Rather, the facts that are asserted defeat the claim of a transfer of business.

45      Paragraph 5 of the statement of claim should be struck out.

46      If paragraph 5 is struck out, the proceeding paragraphs, which deal with the employment prior to 6 December 1999, are immaterial and irrelevant to the claims, so they too should be struck out.

47      The respondents seek to strike out paragraph 5 for the additional reason the allegations are factually incorrect. They rely upon historical company extracts to demonstrate that the allegations are factually incorrect.

48      This may be the basis for summary dismissal of the claim, but it is not a basis for striking out the statement of claim. In any event, it is unnecessary for me to consider this additional basis, as I would strike out paragraph 5 for the reasons I have already stated.

Second Transfer Occasion

49      Paragraph 15 attempts to set up the case for the transfer of business from LifeCare Health, then known as Independent Practitioner Network Ltd (IPN), to Health Network Australia Pty Ltd (HNA). It provides:

15. In or around April 2005 Health Network Australia Pty Ltd acquired from Independent Practitioner Network Ltd and commenced operating the LifeCare Business (“Second Transfer Occasion”) at which time the Claimant commenced work as State Manager of the LifeCare Business pursuant to an oral contract of employment (“Fifth Contract”) made with HNA Physio (WA) Pty Ltd ACN 118 112 619 (as trustee for Lifecare Physio (WA) Unit Trust), a subsidiary of Health Network Australia Pty Ltd (“HNA”).

50      The paragraph suggests a transfer of assets from IPN to HNA, but it does not allege employment with HNA. It alleges employment with a different entity, HNA Physio (WA) Pty Ltd, as Trustee for the LifeCare Physio (WA) Unit Trust.

51      The following material facts for a transfer of business are missing:

(a) that the employment with IPN was terminated;

(b) the date of termination of employment with IPN;

(c) the new employer, HNA Physio (WA) Pty Ltd, owns or has the beneficial use of some or all of the assets that IPN owned or had the beneficial use of;

(d) those assets relate to or are used in connection with the transferring work; and

(e) that the work the claimant performed for HNA Physio (WA) Pty Ltd is the same or substantially the same as the work performed for the old employer, IPN, noting the claimant says he was employed by IPN as ‘WA Director of Allied Health’, providing coaching and operational support to franchisee business owners and managing practices, and his new employment was as State Manager with, ‘similar responsibilities’, but with additional property management, human resources and marketing responsibilities.

52      In fact, if the facts alleged in paragraph 15 are established, not only do they not meet the test for a transfer of business, but they also defeat it. If there is no transfer of business on this occasion, all matters concerning prior employment are irrelevant, and so paragraphs 6 to 14 should be struck too.

Third Transfer Occasion

53      The third transfer occasion is dealt with in paragraph 19 in this way:

19. On or around 30 December 2016, the LifeCare Business was acquired by Zenitas Healthcare Ltd CAN[sic] 009 074 588 (“Third Transfer Occasion”), at which time the Claimant commenced employment pursuant to an oral contract of employment (“Sixth Contract”) with:

19.1 Zenitas HNA Trusco[sic] Pty Ltd ACN 615 300 975 and HNA Physio (WA) Pty Ltd ACN 118 112 619 as trustees for Lifecare Physio (WA) Unit Trust;

alternatively

19.2 Zenitas Healthcare Ltd ACN 009 074 588.

54      At this point in time, according to the statement of claim, the claimant was employed by HNA Physio (WA) Pty Ltd as State Manager of what he calls the ‘LifeCare Business’. It is clear enough that paragraph 19 alleges that either the Trustees or Zenitas Healthcare Ltd became the owner of an asset, the LifeCare Business. This claim has the problem, though, that it does not identify a termination of employment with HNA Physio (WA) Pty Ltd, or a date of employment commencing with a new employer. It is, in its current form, also deficient, because it does not identify what the LifeCare Business is, that is, how it is an asset and how that asset or any part of it was used by the new employer.

55      However, it does not have the fatal inconsistencies of the claimed first transfer occasion and the claimed second transfer occasion. There may be something salvageable.

56      I would strike this pleading out. I will consider further below, whether leave to re‑plead ought to be granted in respect of this cause of action.

Fourth Transfer Occasion

57      This occasion is said to have occurred on 22 June 2018. Paragraph 21 of the statement of claim provides:

21. On or around 22 June 2018 the Claimant commenced employment pursuant to an oral contract (“Seventh Contract”) with:

21.1 Zenitas HNA Trusco[sic] Pty Ltd ACN 615 300 975 as trustee for the Lifecare Physio (WA) Unit Trust;

alternatively

21.2 Zenitas Healthcare Ltd ACN 009 074 588.

(“Fourth Transfer Occasion”).

58      This suffers the same defects I have identified in relation to the previous alleged transfers. It does not clearly identify what assets were transferred to whom. But more problematically, it does not reveal that there was any transfer at all. Paragraph 19 alleges the employer, as at December 2016, was Zenitas HNA Trust Pty Ltd, together with HNA Physio (WA) Pty Ltd, or alternatively, Zenitas Healthcare Limited. In other words, paragraph 21 is in the same terms, except for the removal of reference to ‘HNA Trust Co Pty Ltd’ as ‘Trustee’. If some of the facts in paragraph 21 are established, there may be no transfer of business at all, but simply, a continuation of the same employer. If other facts in paragraph 21 are established, there may be a new contract with a new employer.

59      This means that the pleading is embarrassing and liable to be struck out. Again, I'll return to whether leave should be granted to re‑plead.

Contract Particulars

60      There are problems with how the statement of claim deals with the particulars of contracts. The respondents say that there are a number of deficiencies, including:

(a) that there is ambiguity in what are the material terms of the contracts;

(b) the capacity in which individuals who purportedly entered into the contracts, being oral contracts, were acting, is not disclosed;

(c) lack of clarity as to the identity of the purported employer; and

(d)  material facts giving rise to the creation of an oral contract are not stated.

61      Because I have determined that the claim should be struck out insofar as it concerns any contracts prior to April 2005, I do not need to deal with the respondents’ complaints about paragraphs 1 to 14 or the first to fourth contracts.

Paragraphs 15 and 18 ‑ The Fifth Contract and its amendments

62      First, because of my determination concerning the continuous employment point, the reference to ‘acquired from Independent Practitioner Network Ltd’ in paragraph 15 is irrelevant, as is the reference to the ‘Second Transfer Occasion’.

63      The fifth contract is said to be between the claimant and HNA Physio (WA) Pty Ltd. Paragraph 15 alleges that HNA operated the LifeCare Business, but the claimant was employed by HNA Physio (WA) Pty Ltd as State Manager of the LifeCare Business. That is potentially confusing and unclear, but not sufficiently problematic to warrant the paragraph being struck out.

64      Paragraphs 15 and 18 also allege that the contract was made with and then amended by Lou Panaccio of HNA. This is problematic. It is not clear how Lou Panaccio had the authority to enter into a contract, or vary it, on behalf of HNA Physio (WA) Pty Ltd.

65      The respondents complain that the paragraph alleges the employment commenced in April 2005, but the contract was made in January 2005. I do not consider this to be a deficiency. It is well established that the contract of employment is distinct from the employment relationship, such that a contract can be entered into and subsist for a different period to the employment relationship: Byrne & Frew v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300 and Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; (1995) 62 IR 200.

66      Paragraph 15.2 alleges that it was a material term of the contract that the claimant be paid a fixed annual salary ‘…with the claimant issuing monthly invoices through an entity controlled by him, Highpine Nominees Pty Ltd…’. This paragraph may be internally inconsistent. It's not clear to me how there can be both an express oral agreement to pay a salary and an express oral agreement to make payment on invoice. However, this point was not argued, and I do not propose to resolve it at this interlocutory stage.

67      I would, for these reasons, strike out the particulars in paragraphs 15.1 and 15.2 with leave to re‑plead this paragraph.

68      I would also strike out paragraph 18. Aside from the problem concerning Lou Panaccio’s capacity to vary the contracts, the particulars of the alleged variations are so vague that they are embarrassing. The respondents should not be required to respond to them, nor can they be properly or fairly tried. In any event, the alleged variations are immaterial to the claims.

Paragraph 19 ‑ The Sixth Contract

69      As alluded to previously, this claim is that an employment contract was entered into between either the first respondent or the second respondent as Trustee with another entity, HNA Physio (WA) Pty Ltd.

70      The contract is said to be an oral contract entered into by conversations with Mr Justin Walter on behalf of all the potential employers. Mr Walter’s capacity to enter into a contract on behalf of any of those entities is not identified. It should be.

71      The respondents also complain that the claimant does not identify how he is employed under one contract by two entities. I do not understand this to be a concern with whether there can be two concurrent employing entities. It seems there is scope in the law for such a scenario: Quirk v Construction Forestry Maritime Mining and Energy Union [2021] FCA 1587; 398 ALR 39. If this is the complaint, it is not a matter which I would determine on an interlocutory application such as the present.

72      Rather, the objection, as I understand it, is that the contract is said to be oral and entered into by conversations with one individual, Mr Walter, but resulting in a contract with two different entities concurrently. The respondents rely upon what Snaden J said at paragraphs [30] ‑ [40] of Weddall to the effect that the failure to allege with proper precision which of the respondents is said to have employed the applicants is plainly unacceptable.

73      The problem in Weddall was that the plea was to the effect that one or more of four entities employed the applicants. His Honour described that as a rolled up, ambiguous and internally inconsistent pleading.

74      The problem with paragraph 19 is different. It is that it does not demonstrate how the particulars which are pleaded at paragraph 19.3 resulted in the formation of a contract with any of the entities that are said to have become an employer. Having the identity of the employer in the alternative, it seems to me, is acceptable. But not particularising how a contract results with each employer is not. So that is also reason why paragraph 19 should be struck out.

Paragraph 21 ‑ The Seventh Contract

75      This paragraph alleges an oral contract was entered into with the first respondent or alternatively, the second respondent, but that it involved no change to any material terms from the sixth contract. No material facts or particulars are given, other than that the contract was oral and made on 22 June 2019. This paragraph is, therefore, clearly liable to be struck out.

76      It is also unclear what the purpose of paragraph 21 is. As I alluded to earlier, it does not necessarily set up a transfer of business. Paragraph 23 alleges in the alternative to paragraph 21 that the claimant continued to be employed by the entities identified in paragraph 19.

77      Paragraph 23 cannot operate logically as an alternative to paragraph 21 in its current form.

78      I would strike out paragraphs 21 to 23.

Accrued Entitlements Claim

79      In various places the statement of claim says that the claimant was not paid any accrued entitlements on transfer occasions. This involves an implicit conclusion, namely, that the claimant had some accrued entitlement, without asserting the facts which give rise to the accrual of an entitlement, whether it be annual leave or long service leave. These claims are deficient and should be struck out.

The Notice Claim

80      The claim for payment in lieu of additional notice of termination is in the form of a bare assertion that the one month’s notice of termination which was given to the claimant was not reasonable or lawful in all of the circumstances. Annexure B then identifies the claim as two months’ salary pursuant to the Fair Work Act 2009 (Cth) (FW Act), but no section is specified.

81      Section 117 of the FW Act entitles an employee to payment in lieu of notice of termination. It does not require either ‘reasonable notice’ or two months’ notice. The claim is therefore either too general or too unintelligible or it is illogical. It basically raises a false issue and should be struck out.

82      Additionally, paragraph 17 appears to be prolix, and paragraph 24 is unintelligible and embarrassing.

Should the claimant have leave to amend the Statement of Claim?

83      The respondent has made out a proper basis to strike out the statement of claim in its entirety. Unless I grant the claimant leave to re‑plead, the claim cannot survive. The respondents have asked me to strike out the claim in its entirety and dismiss the claim while conceding that to do so is an extreme step. They refer to:

(a) the multiple opportunities the claimant has had to rectify the statement of claim;

(b) the fact that the facts pleaded do not accord with public records and discovery;

(c) the lengthy period since 2010 when the claimant alleges he was first entitled to long service leave, and

(d) the difficulties the respondents have had and will continue to have in responding to the claim.

84      While the ordinary course is to grant leave to re‑plead, I see no utility in granting the claimant an opportunity to re‑plead his case insofar as it concerns purported employment prior to 2005. The claimant has said that in order to make these claims good, he needs access to business sale agreements from that period. Those business sale agreements are between third parties who are not parties to these proceedings. There is no indication that those documents are likely, after this lengthy period of time, to suddenly come to hand. In any event, the facts asserted by the claimant cannot be re‑pleaded in a way that will disclose an arguable case of transfer of business for the purpose of the LSL Act for the reasons I have already stated.

85      Incidentally, I note that what is a transfer of employment under the FW Act for the purpose of the annual leave claim and continuous service as defined in ss 22 and 311 of the FW Act is substantively the same as the transfer of business provisions of the LSL Act. In any event, the annual leave claim does not appear, at least on the face of it, to rely on continuous employment between different employers.

86      I will, however, grant leave to re‑plead the causes of action for annual leave and long service leave only, to the extent that they arise from purported continuous employment from April 2005 to February 2020. Because this is a more recent period and involves fewer contractual arrangements, I consider it reduces considerably, the prejudice which the respondents have referred to.

87      The claimant should be given leave to amend the statement of claim to state the facts giving rise to the alleged employment from April 2005 onwards, the alleged transfers of business after that time, and the alleged leave accruals, including what entitlement had accrued, why it had accrued, and in what amount it had accrued.

Orders

88      The orders will therefore be:

1. The claimant’s application dated 2 August 2023 for leave to file and serve a further Amended Originating Claim and for consequential programming orders be dismissed.

2. Paragraphs 1 to 24, the words “which notice was not reasonable or lawful in all the circumstances” in para 27, the words “and did not receive any payment in respect of additional notice in lieu” in paragraph 28 and Annexure B paragraph 1(c) of the Amended Originating Claim be struck out.

3. The claimant has leave to re-plead the following paragraphs of the Amended Originating Claim:

a. paragraphs 15, 19, and 21;

b. the facts giving rise to the alleged accrued and unused leave entitlements; and

c. Annexure B paragraph 1(a) and (b) made necessary as a consequence of order 1 by filing a Re-Amended Originating Claim by no later than 30 August 2023.

4. The respondents application for dismissal of the proceedings is dismissed.

5. The respondents file and serve any application for costs in relation to their application for orders filed on 15 June 2023, supporting affidavit and written submissions (no longer than 10 pages) by 15 September 2023.

6. If the respondents file and serve an application for costs, then the claimant file and serve any affidavit and written submissions (no longer than 10 pages) by 29 September 2023.

7. If the claimant files and serves any material in accordance with order 4, the respondents may file and serve a submission in reply (no longer than 10 pages) by 13 October 2023.

8. Subject to further order, any application for costs be determined on the papers without an oral hearing.

R COSENTINO

INDUSTRIAL MAGISTRATE