Buksh v Ramsay Health Care Trading as Peninsula Private Hospital

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUKSH v RAMSAY HEALTH CARE TRADING AS PENINSULA PRIVATE HOSPITAL

[2020] FCCA 3560

Catchwords:
INDUSTRIAL LAW – Ex-tempore ruling on interim dispute.

Legislation:

Fair Work Act 2009 (Cth), ss. 368, 370, 570

Cases cited:

ABC v O’Neill (2006) 227 CLR 57

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539

Applicant:

BEN BUKSH

Respondent:

RAMSAY HEALTH CARE T/A PENINSULA PRIVATE HOSPITAL

File Number:

MLG 3215 of 2020

Judgment of:

Judge Burchardt

Hearing date:

2 December 2020

Date of Last Submission:

2 December 2020

Delivered at:

Melbourne

Delivered on:

2 December 2020

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Tracey

Solicitors for the Respondent:

Rigby Cooke Lawyers

ORDERS

The Applicant’s Application in a Case on 12 October 2020 be dismissed.
On or before 18 December 2020, the Respondent shall file and serve its Application in a Case seeking summary dismissal, and any affidavit material upon which it will rely in support of that Application in a Case.
On or before 18 January 2020, the Applicant shall file and serve any material in response to the Respondent’s Application in a Case.
The Application in a Case be adjourned to this Court for Hearing on 19 February 2021 at 9:00am.
There be liberty to apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3215 of 2020

BEN BUKSH

Applicant

And

RAMSAY HEALTH CARE T/A PENINSULA PRIVATE HOSPITAL

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

In order to put this present dispute in its proper context, it is appropriate to say a few words about the course of proceedings thus far. The matter commenced with the application filed by the applicant on 2 September 2020. Under the heading Interlocutory Interim or Procedural Orders Sought by the Applicant, it was asserted:
An Interim order is requested to set aside the current settlement agreement & Notice of discontinuance to matter number U2018/3939, & To allow the dispute between the respondent and the applicant to be mediated and/or a decision be provided by hearing or by Court order.
Reference was made to the accompanying Form 2 application. That application, likewise filed on 2 September 2020, is not entirely easy to construe. From it, I note that it appears that the last date on which Mr Buksh worked for the respondent was 8 March 2018. I note that it is asserted inter alia that the respondent’s officers have provided fraudulent evidence to the Fair Work Commission and to the WorkSafe authorities. It is also asserted that officers of the respondent have made false allegations against the applicant constituting adverse action, and it is alleged the Chief Executive Officer and Human Resource staff of the respondent had attempted to restrict the applicant’s employment.
The relief sought at paragraph 26 includes an injunction to stop the respondent bullying and harassing the applicant and to allow him to return to work on light duties, compensation for loss of earnings and the like, reinstatement and imposition of pecuniary penalties, and under the heading Other, what is sought is the restoration and return of the applicant’s professional reputation and various other matters.
Amongst the various documents appended to the claim is a letter, it would appear, from Mr Buksh to the respondent dated 9 April 2018, which relevantly asserts:
During the meeting arrange last month, i was unable to conduct myself in any sort of formal manner. Unfortunately i felt i was forced into submitting my resignation but was not able to provide any explanations to the allegations.
Amongst the documents annexed, one of them appears to be terms of settlement apparently executed by the applicant on 20 September 2018. On 29 September 2020, Judicial Registrar, David Ryan, made orders which relevantly referred the applicant’s application for an interim injunction to a Judge and, of course, that is what is now before the Court, although it should be noted that the applicant has filed an application in a case on 13 October 2020, in which the relief sought is refined. I will read that out. The orders sought are:
1.The applicant would request the court for an order, - To provide an order, to set aside the Notice of Discontinuance to matter U2018/3939 and the settlement agreement for matter U2018/3939 to allow the dispute between the applicant, (Ben Buksh) and the respondent (Ramsay Health Care T/A Peninsula private hospital) to be mediated or decided by trial;
2.The applicant would request the court for an order, - To provide an order that allows, the applicant (Ben Buksh) to access accident pay from the respondent (Ramsay Health Care T/A Peninsula private hospital) as required by law and legislation and for the respondent (Ramsay Health Care T/A Peninsula private hospital) to arrange a suitable return to work program to be initiated by the employer immediately as required by laws and legislation;
3.The applicant would request the court for an order. - To provide an order that, the respondent (Ramsay Health Care T/A Peninsula private hospital), is to cease and desist with providing false and fraudulent information or records in relation to the applicant (Ben Buksh) or on behalf of the applicant (Ben Buksh).
The affidavit filed in support of that application on the same day is, once again, not entirely easy to construe. I should emphasise that this is not intended in any sense to be critical of Mr Buksh, who is representing himself, but it does present certain constructional difficulties.
From that affidavit, I note that Mr Buksh has complaints which go back as far as 2008. He complains of the misuse by the respondent of the settlement agreement. There are complaints asserted in somewhat general terms as to incorrect pay increases and complaints about payslips. The complaints arising out of occupational health and safety matters and injury to the applicant, and it is clear on any view that there is an ongoing WorkCover dispute.
I turn now to the oral submissions made today – and, of course, this is a paraphrase, not a transcript. The applicant, in response to a question from the Court, confirmed that there had been a settlement, and said he was not in the best of states at the times, and it might represent a misguided judgment on his part.
He went on to seek the grant of the injunction, and referred to the WorkCover materials occupying some 400 pages which could be made available. He had believed that supported the grant of an injunction. The WorkCover claim had been going at the same time, and the injunctive relief would support financial relief pursuant to Part 1B, which I take is a reference, perhaps, to the WorkCover legislation. At a hearing for an injunction with access to financial support and treatment, the respondent was not offered any treatment for his injuries. He referred to the result of the recent conciliation conference in the WorkCover proceeding and he said – and if I may say so, it is apparent that this was the case that it was very painful for him to discuss this matter.
There was the common law claim; superannuation had been paid incorrectly. There were irregularities in 2014 to 2015. There had been some small restitution. There was a cause of action to grant the injunction, and the actions are still going through WorkCover and involve bullying. At one stage, they even turned his doctors against him.
His judgment was not as his best at the time of the conciliation conference, and it was too much for him at the Industrial Commission, who had spoken to the respondent about this.
Counsel for the respondent is content to rely upon the written submissions previously filed which Mr Buksh confirmed he had received. There was some discussion with the bench as to whether an injunction of the sort that Mr Buksh is seeking would require the usual undertaking as to damages. Counsel referred to the statute and powers to grant injunctive relief and submitted that whether it was a common law claim in relation to the injury or otherwise that the usual undertaking was appropriate.
Mr Buksh, in reply, made reference to rules of the Federal Court and Federal Circuit Court which he said touched upon the matter.
To deal with the question of the undertaking first, I am inclined to agree that the undertaking would ordinarily be required whether this was an application pursuant to statutory power under the Fair Work Act2009 (Cth) or at common law, but it was not entirely clear to me – indeed, it is not at all clear to me – that Mr Buksh really understood the concept of the usual undertaking as to damages.
In the particular circumstances of the case, the absence of such an undertaking, were it to be required, is not one I would hold against him. That brings us to the test to be applied, and in my respectful view, the test is that set out in the joint judgment of Gummow and Hayne JJ in ABC v O’Neill (2006) 227 CLR 57 at [65], where their Honours said the following:
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
That this was the sense in which the Court was referring to notion of a prima facie case is apparent in an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.
In addition to the question of the prima facie case, the Court is also required to consider the balance of convenience. These two matters – and it is well established - inter-relate with one another, so that where, for example, the prima facie case is weak and the balance of convenience is overwhelming this affects the outcome and vice versa.
The respondent submits that adverse action in the form of dismissal is not in issue because there is no certificate pursuant to section 368 of the Fair Work Act and, indeed, it is clear that the applicant did not seek or obtain such a certificate; rather, the matters in the commission appear to have settled with the assistance of the Commissioner.
If we turn to section 370 of the Fair Work Act, “A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to a dispute unless:
(a)both of the following apply;
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections Court application is made within 14 days after the date of certificate is issued, or within such period as the court allows on an application made during or after those 14 days or;
(b)the general protections court application includes an application for an interim injunction.”
It would seem to me that where the general protections application in this application included an application for an interim injunction – the proscriptions that apply otherwise in subclause (a) not produce the results, on the face of it, of a time limit for the bringing of the application.
Whether that is, in the ultimate, a correct assumption is open to some question. It would seem counterintuitive that by simply making an application which involves an application for interim injunction, an applicant can step around, as it were, the stringent requirements for a certificate and the 14 day application limit.
But even if that is the case, the resignation took place in April 2018; the settlement took place at the commission in September 2018, and there was no application to this Court, in effect, for two years, which is clearly a very significant delay.
It is well established, and it is not necessary to cite authority for the obvious proposition, that the injunction application should be brought promptly. It is clear that all the matters now pressed have been extant for a long time – that is one point to bear in mind.
Turning to the question of the prima facie case, I have to confess it is hard to see what the prima facie case is. There is some suggestion of underpayment of wages or superannuation, but there is no immediately obvious or inter-related adverse action referred to.
It is sufficient to say that, doing the best I can in circumstances, the prima facie cases seems to me to be weak. I should note that the WorkCover claims might attract the accrued jurisdiction, but there they must be a primary valid statutory cause of action before the Court can consider exercising its powers under the accrued jurisdiction.
That brings me to the particular injunctions sought, which are of course in the application in a case. The first is an order to set aside the notice of discontinuance of the settlement arrived at in the commission to enable the dispute to be mediated and decided by a trial.
It should be emphasised that the applicant admits there was a settlement. He said – and I think my notes accurately record the matter – that it might be a misguided judgment, or that:
My judgment was not the best at the primary conciliation conference.
I accept that that may well be so, but there is no proof that the respondent knew this, and there is no proof, in any event, that the respondent took improper advantage even if it did notice. The prima facie case is, in my view, very weak.
The balance of convenience strongly favours the respondent. Any continuation of the matter setting aside the settlement will necessarily involve further litigation and costs in what is, prima facie, a non-costs jurisdiction. The respondent entered into a settlement with the assistance of the Fair Work Commissioner. There has been a very extensive period before the application was brought.
Taking all these matters into consideration, I am not inclined to make the interim injunction sought in terms of order 1. Order 2 is the order to provide access to accident pay, to which I have already referred. But that is already underway. Indeed, I note that from 20 November 2020, a certificate was issued by the action compensation conciliation service, which noted, relevantly, an inability to bring the parties to agreement.
The conciliation conference was satisfied that there was an arguable case in supporting denial of liability to make or continue weekly payments and was satisfied there was a genuine dispute with respect to liability, and noted in conclusion that application may be made to a Court to determine the matter.
This matter can and should proceed in a Court of competent jurisdiction. There are well-established remedies in Victorian Courts to deal with disputes of this character. There are, indeed, to an extent, specialised Courts for judges who specialise in that field. It is completely inappropriate in these circumstances to contemplate entertaining this claim in this jurisdiction. I repeat: I am not at all satisfied with that primary jurisdiction of the Court is engaged in any event.
It is, therefore, inappropriate on all fronts to contemplate granting interlocutory injunctive relief in those terms.
The third matter is a request for an order for the respondent:
…to cease and desist with providing false and fraudulent information records in relation to the applicant or on behalf of the applicant.
This, of course, is a very broadly expressed injunction, and indeed would be, as I say, very broadly expressed in any order. I repeat the prima facie case is weak. The applicant, I note in the materials, he asked to resign when he was on a final warning and facing dismissal.
The injunctions sought would require constant curial supervision, and/or are likely to give rise to protracted ancillary proceedings. Furthermore, and very significantly, the injunctions sought presupposes that the impugned conduct has been established. That is, of course, not the case. That sort of injunction could only properly be made at the conclusion of the trial in the matter, in any event. So that injunction is, in my opinion, one which is wholly inappropriate to grant. I propose to dismiss the applicant’s application in a case. The respondent has proposed various further orders.
RECORDED : NOT TRANSCRIBED
In this matter, the respondent, which has been successful in this interlocutory argument seeks costs fixed at $2172. I should say that those costs of themselves are eminently reasonable, and if I award costs that is the sum I would award. Costs may only be awarded, however, pursuant to section 570 of the Fair Work Act, and subsection (2) is as follows:
A party may be ordered to pay the costs only if:
(a)the Court is satisfied the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the Court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the Court is satisfied of both of the following:
(i)the party unreasonably refused to participate in the matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
The respondent’s written submissions foreshadowed an application for costs, and relevantly assert there is no merit in the interlocutory application and the filing and pursuit of it amount to an unreasonable act which has incurred costs. The matter is therefore pressed under section 570(2)(b) of the Act.
It’s well-established in cases as long ago as Kanan v Australian Postal and Telecommunications Union [1992] FCA 539, which is quite some years back now, that the assessment of the unreasonableness of the applicant’s position requires consideration of how the matter might reasonably be seen to them at the time the application was brought. It is important to remember that Mr Buksh is self-represented, and he sees the matter through the prism of his own immediate concerns, and, certainly, it is fair to say that during the proceeding before me, he found the matter emotionally draining and difficult, and visibly so.
While I have found that the particular injunctions sought were inappropriate for the reasons that I have given, and bearing in mind Mr Buksh’s lack of legal understanding and obviously the genuine sense of dissatisfaction he has, in my view it cannot be said in the particular circumstances of the case that he satisfies the test in section 570(2)(b). For that reason, I decline to make an order for costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 15 January 2021

[2020] FCCA 3560

2 December 2020

Key Legal Topics

Areas of Law

Employment Law

Legal Concepts

Jurisdiction