Pigozzo v Mineral Resources Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 03 April 2023
• Neutral Citation: [2023] FCA 331
• Date: 03 April 2023
• Court: Federal Court

Federal Court of Australia

Pigozzo v Mineral Resources Ltd [2023] FCA 331

Appeal from:	Pigozzo v Mineral Resources Ltd [2022] FCA 1166
File number:	WAD 217 of 2022
Judgment of:	COLVIN J
Date of judgment:	3 April 2023
Date of publication of reasons:	12 April 2023
Catchwords:	PRACTICE AND PROCEDURE - application for leave to appeal a decision of the Federal Court of Australia - where primary judge struck out paragraphs of statement of claim with leave to re-plead - where applicant alleges primary judge adopted an overly technical approach to the expression of pleadings - where applicant alleges substantial injustice - application dismissed
Cases cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Décor Corporation Pty Ltd v Dart Industries Inc (1993) 33 FCR 397 Nationwide News Pty Limited v Rush [2018] FCAFC 70 Oztech Pty Ltd v Public Trustee of Queensland[2019] FCAFC 102; (2019) 269 FCR 349 Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	38
Date of hearing:	3 April 2023
Counsel for the Applicant:	Mr B Collins KC with Ms CM Saraceni
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the First and Second Respondents:	Mr S Penglis SC
Solicitor for the First and Second Respondents:	Bennett
Counsel for the Third and Fourth Respondent:	The Third and Fourth Respondents did not appear

ORDERS

		WAD 217 of 2022
BETWEEN:	STEVEN PIGOZZO Applicant
AND:	MINERAL RESOURCES LTD (ACN 118 549 910) First Respondent ; CHRIS ELLISON Second Respondent ; BENNETT + CO Third Respondent ; ROBERT 'BOB' GAVRANICH Fourth Respondent

order made by:	COLVIN J
DATE OF ORDER:	3 april 2023

THE COURT ORDERS THAT:

1. Until further order, no person shall publish any account of the hearing of the proceedings today.

2. The application for leave to appeal is dismissed.

3. The question whether the order restricting publication of the hearing of these proceedings shall continue to be listed for hearing at 12.30 pm 3 April 2023.

4. The costs of the application for leave to appeal be reserved.

5. On or before 17 April 2023, any application for costs orders shall be brought by filing written submissions of no more than 5 pages and any necessary affidavit in support, such submissions to state the terms of any orders sought.

THE COURT NOTES THAT:

1. Later on 3 April 2023, a further order was made that order 1 shall not continue and limited non-publication orders were made.

Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Steven Pigozzo was formerly an employee of Mineral Resources Ltd (MRL). He claims to have been unlawfully dismissed from his employment. On 1 June 2022, he commenced proceedings against MRL, its chief executive officer (Mr Ellison), a firm of solicitors (Bennett + Co) and a senior manager employed by MRL. MRL and Mr Ellison applied to strike out the statement of claim in those proceedings. The application was successful and a number of paragraphs in the pleading were struck out with leave being given to re-plead. Non‑publication orders were also made in respect of the contents of the paragraphs that were struck out.

2. Mr Pigozzo sought leave to appeal the decision on the strike out application. The proposed grounds of appeal identify 39 grounds of appeal. I refused the application for leave and indicated that I would provide reasons for doing so. These are my reasons.

3. In the usual case, an applicant for leave to appeal must demonstrate both that the relevant decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused (assuming the decision to be wrong): Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. Further, where leave is sought to appeal in respect of a matter of practice or procedure, the Court is circumspect in granting leave: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177 and, as to pleading points, Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]‑[6] (Lee J, Allsop CJ and Rares J generally agreeing).

4. Submissions to the following effect were advanced as reasons why there would be substantial injustice if leave was refused (assuming the decision to be wrong):

1. the primary judge adopted an overly technical approach which was a departure from modern practice;

2. the primary judge adopted an approach which required a form of pleading which was contrary to the policy of the Fair Work Act 2009 (Cth) being the statute relied upon as the basis for many of the claims advanced by Mr Pigozzo;

3. in respect of one aspect of the decision (which concerned the parts of the pleading that dealt with what was described as the Hamptons proceedings), it was not possible to re‑plead the case because there was nothing further to plead;

4. the approach of the primary judge was inconsistent with the reasoning in Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348;

5. there was too much pedantry in his Honour's reasoning; and

6. the proposed appeal grounds raised matters of general principle relating to (a) iniquity as a basis for denying a claim to privilege; (b) the limits of the relationship between a managing director and an employee; and (c) whistleblower provisions.

5. In written submissions, it was also said that the reasoning of the primary judge would give rise to substantial injustice because it would allow the respondents to succeed in deploying legal professional privilege as a cloak for iniquity. I will treat this as reason (7) as to why it was said that there would be substantial injustice if leave was refused.

6. Significantly, the only submission advanced to the effect that the decision by the primary judge would have some form of ongoing substantive effect was the claim made concerning the parts of the pleading that addressed the Hamptons proceedings.

7. It was made clear that there was no challenge to the non-publication order made by the primary judge unless the pleading points were able to be raised and were successful.

8. Each of the reasons advanced to support the submission of substantial injustice is addressed below.

9. As to (1), (2) and (5), these submissions complain about the overall approach adopted by the primary judge concerning the detail and precision with which allegations ought to be expressed in a pleading. They reflect submissions advanced in support of contentions that there was merit in the proposed appeal grounds. Those submissions placed reliance upon certain observations by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]-[5] to the effect that the contemporary role of pleadings has to be viewed in the context of modern case management techniques which afford a degree of confidence that following the close of pleadings other steps will be undertaken 'to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met'.

10. As to those observations, it must be said that they are concerned with past practices whereby disputes ensued as to whether sufficient material facts had been alleged or whether further particulars should be provided. Such requests for further and more detailed articulation of the nature of a case are generally eschewed by modern...