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‘Unusual’: Firm faces allegations of ‘aiding and abetting’ Fair Work breaches
A boutique law firm and a Federal Court judge were caught up in allegations behind an “unusual” Fair Work claim.
Naomi Neilson
Steven Pigozzo, a former employee of West Australian mining service Mineral Resources, alleged the company, its chief executive, and a senior manager contravened the Fair Work Act by dismissing him.
An application to strike out his statement of claim was successful, and the company were granted leave to re-plead.
A second application advanced by Mr Pigozzo for leave to appeal the decision to strike out his statement of claim was refused, and earlier this month, the Federal Court of Australia granted the company costs.
Part of Mr Pigozzo’s grounds to appeal included claims the primary judge had an “overly practical approach which was a departure from modern practice” and had too much “pedantry” in his reasons.
Mr Pigozzo also claimed the judge had given rise to a “substantial injustice” because they allowed the company to succeed in deploying legal professional privilege as a “cloak for iniquity”.
This privilege related to correspondence relating to Bennett + Co, which was acting for a subsidiary of Mineral Resources.
Mr Pigozzo alleged the content of the confidential communication revealed “a fraud or an inquiry of some kind that meant there was no legal professional privilege”, but this was dismissed.
Allegations in the plea also refer to a claim that the subsidiary and set out instructions were said to be given to Mr Pigozzo by Mineral Resources’ in-house counsel to review email correspondence for the purpose of sending some material to the firm.
Mr Pigozzo alleged this provided the foundation for the contravention of the Fair Work Act by the company, which he claimed was “aided and abetted by Bennett + Co”.
The primary judge found the pleading “deficient” and “suffered from a lack of clarity and ambiguity as to precisely what was being alleged”.
“It must be observed that the problem with the discursive plea is that it fails to plead concisely the nature of the case alleged.
“In a case where allegations are serious and maximum penalties are sought, there is much to be said for requiring an applicant to be clear and concise as to the nature of what is being alleged,” the Federal Court found.
The primary judge found there were “real difficulties” with the statement of claim, including that it was “unduly long and pleads a considerable amount of evidence”.
It also found it was an “unusual case”.
“Views may differ as to whether the primary judge went further than was necessary in order to expose the problems with the pleading.
“However, a complaint of that kind is not one which suggests substantial injustice in circumstances where leave has been given to re-plead,” the Federal Court ruled.
Mineral Resources and its CEO were granted 50 per cent of costs, excluding the cost of filing an extension of time.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
