Cartisano v Sportsmed SA Hospitals Pty Ltd

[2015] FCCA 2140

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARTISANO v SPORTSMED SA HOSPITALS PTY LTD [2015] FCCA 2140

Catchwords:
INDUSTRIAL LAW – Application for a penalty and compensation following unfair dismissal proceedings in Fair Work Commission – FWC ordered reinstatement – applicant claims she has not been properly reinstated – applicant seeks orders requiring respondent to take particular steps in the workplace – respondent opposes making of such orders on the basis that the applicant has been reinstated and it is oppressive to require it to modify its work practices – application to dismiss summarily aspect of the claim – matters to be considered.

Legislation:
Fair Work Act 2009, ss.387; 390; 394; 405; 539; 545(1)
Federal Circuit Court of Australia Act 1999; s.3(2)
Federal Circuit Court Rules; rr.4.02; 4.05; 1.10

Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539
Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523
Patrick Stevedores Operation No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195CLR 1
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Martin v IC Frith & Associates [2013] FCCA 1745

Applicant: GIUSEPPINA CARTISANO

Respondent: SPORTSMED SA HOSPITALS PTY LTD

File Number: ADG 135 of 2015

Judgment of: Judge Brown

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Adelaide

Delivered on: 13 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Radbone

Solicitors for the Applicant: Radbone & Associates

Counsel for the Respondent: Mr Manos

Solicitors for the Respondent: O’Loughlins Lawyers

ORDERS

1. Pursuant to Rule 13.10(a) of the Federal Circuit Court Rules 2001 orders 1.1 to 1.3.11 of the applicant’s amended application filed 14 July 2015 are dismissed. 

2. Within twenty-eight (28) days of today’s date the respondent is directed to file and serve points of claim in respect of her assertion that she was not constructively reinstated to the position held by her before the termination of her employment after the order was made for her reinstatement by the Full Bench of the Fair Work Commission.

3. The respondent file points of defence in respect of the points of claim ordered in order 1 hereof within a further twenty-eight (28) days.

4. The matter is fixed for final hearing before Judge Brown on 2, 3, 4, 5 & 6 May 2016 at 10:00am NOTING 5 days allowed.

5. The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 11 April 2016.

6. The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 18 April 2016.

7. Further consideration of the matter is listed for directions on 2 December 2015 at 9:30am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 135 of 2015

GIUSEPPINA CARTISANO

Applicant

And

SPORTSMED SA HOSPITALS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings arise, in this court, following earlier proceedings in the Fair Work Commission (FWC).  The applicant in the FWC proceedings, as in these proceedings, is Giuseppina (Josie) Cartisano.  The respondent is Sportsmed SA Hospitals Pty Ltd. 

2. Ms Cartisano “the applicant” was employed by Sportsmed SA Hospitals Pty Ltd “the respondent” as the manager of its Central Sterilising Supply Department “CSSD”.  She began this position in May of 2011, following previous experience, as a sterilisation attendant, at the Calvary Wakefield Surgicentre. 

3. The respondent operates a private hospital, which offers medical services.  It employs approximately 180 people.  A core aspect of its business centres on the need for it to be able to provide sterile instruments and equipment, for use in surgical procedures performed at its premises. 

4. On 2 September 2012, the applicant was involved in a serious motor vehicle accident, which was unrelated to her work.  She suffered injuries to her upper body, particularly her right shoulder. 

5. The applicant was able to return to work following her accident.  She did however consult her general practitioner, in respect of physical discomfort, which she was suffering as a consequence of her injuries. Her doctor referred her to an orthopaedic surgeon, Mr Saies. 

6. Mr Saies recommended that the applicant undergo an operation on her right shoulder because it was unstable and needed fixing.  The operation took place on 27 August 2013 and following it, the applicant was required to take rest in order to recuperate.  She expected to be away from her work for between eight and twelve weeks. 

7. On 24 October 2013, the respondent terminated the applicant’s employment in the CSSD.  It was this incident, which led to the proceedings in the FWC.  In these proceedings, the applicant asserted that her dismissal from her employment was unfair. 

8. On 8 May 2014, Senior Deputy President O’Callaghan found the termination of Ms Cartisano’s employment to be unfair, as he was satisfied that the evidence available to him demonstrated the dismissal was harsh, unjust and unreasonable, when the criteria specified in section 387 of the Fair Work Act 2009 “the Fair Work Act” were considered.

9. Pursuant to section 390 of the Fair Work Act, the FWC may order the reinstatement, in employment, of a person who has been found to have been unfairly dismissed. On 29 July 2014, following the examination of further evidence, particularly in regards to the work done in the CSSD and of a medical nature, Senior Deputy President O’Callaghan ordered that the applicant be reinstated to the position of Manager of the CSSD at the respondent’s hospital.

10. Significantly Senior Deputy President O’Callaghan ordered that this reinstatement was to be subject to a risk assessment to be conducted by Sportsmed.  The implication of this risk assessment being to insure that neither the applicant nor anyone else was not at risk of harm because of any incapacity relating to the applicant.  In addition, the respondent was ordered to pay Ms Cartisano, her normal ordinary hours wages, lost to her, since 4 June 2014.

11. Following the decision of Senior Deputy President O’Callaghan, through her solicitor, the applicant informed the respondent that she intended to return to work on 12 August 2014.  She was subsequently advised by the respondent that the risk assessment, to which her reinstatement was subject, as a consequence of the FWC order, would be carried out by Dr Geoffrey Graham, an occupational physician. 

12. In his report dated 8 August 2014, Dr Graham wrote as follows:

    “Ms Cartisano gives a history of ongoing bilateral shoulder pain, greater on the right and demonstrates an ongoing problem with limitation of movement in both shoulders and pain at the end of range.  This was also noted by Dr Jezukaitis.  Given the length of time which she has been experiencing symptoms she must have an increased risk of aggravating her shoulder problem with a number of activities including heavy lifting, greater than 10kg and use of the arms above mid-chest height.  The extent of this risk will be affected by a number of factors and in this regard I have concerns in relation to the likely relationship between Ms Cartisano and her employer should she return to work at Sportsmed SA.”

13. It has been the applicant’s position, in both the current proceedings and those before the FWC, that her position, at Sportsmed, was essentially administrative in nature and, as such, did not require her to engage, to any great extent, in the physical activities required to sterilise medical equipment, particularly lifting heavy items on the floor.[1] 

    [1] The term floor work apparently refers to the actual sterilisation of equipment and entails some level of manual labour.  See affidavit of Paula Hill filed on 20 July 2015 at paragraph 40.

14. Sportsmed, ostensibly at least, do not accept this to be the case.  They assert that the manager of the CSSD was frequently called upon to work on the floor when other staff members took leave or were absent due to illness, as well as during routine shifts.

15. The apparent rationale of Dr Graham’s opinion was that Ms Cartisano could not perform necessary physical tasks, in the workplace, because of her shoulder injury.  Given what he understood of the position, Dr Graham believed she would be required to perform such duties with some degree of frequency. 

16. Ms Cartisano did not accept that her position entailed those duties to any significant degree.  She also considered that Dr Graham had over-stepped his professional responsibilities in his reference to the nature of the relationship between her and Sportsmed.

17. As a consequence of Dr Graham’s assessment, the respondent considered that it was not obliged to reinstate the applicant because she had not satisfied the risk assessment ordered by Senior Deputy President O’Callaghan. 

18. The applicant was aggrieved at this decision, which she considered to be unfair and based on a biased assessment.  In these circumstances, she elected to institute further proceedings before the Full Bench of the FWC.  In particular, she sought to challenge the condition attached by Senior Deputy President O’Callaghan to her reinstatement.  The respondent cross-appealed. 

19. The Full Bench upheld the applicant’s appeal.  It considered that Senior Deputy President O’Callaghan could not lawfully reinstate Ms Cartisano’s employment, subject to the satisfaction of a condition in the terms ordered by him.  Thereafter, the Full Bench considered that it had sufficient evidence before it to re-determine the application for reinstatement originally brought by the applicant. 

20. The Full Bench accepted the following findings of Senior Deputy President O’Callaghan as follows:

    ·The CSSD Manager was required to do relief work, on the floor, when other employees were absent and this requirement was likely to occur with some frequency;

    ·Lifting weights in excess of 10kg was an element of the position but could not be characterised as a frequent one.  Rather, it could be done by others working on the floor, at the direction of the CSSD Manager;

    ·Working extended days was not an inherent requirement of the position;

    ·The medical evidence available did not preclude the applicant from performing aspects of the role, which might pose risks to her, in terms of heat, weight, infection or injury from sharp instruments. 

21. In this context, and after considering the import of the High Court decision in Blackadder v Ramsey Butchering Services Pty Ltd,[2] the Full Court concluded as follows:

    “We conclude that Ms Cartisano is fit to perform the duties of CSSD Manager, and therefore that it is appropriate to make an order for reinstatement to that position.  That reinstatement order, which will be issued in conjunction with this decision, will require Ms Cartisano to be reinstated within 14 days of this decision.  We will make orders for the payment of lost remuneration and the maintenance of continuity of employment in the same terms as made by the Senior Deputy President.”[3]

    [2]  See Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539

    [3]  See Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523

22. As a consequence of the orders of the Full Bench of the FWC, the applicant returned to work at the CSSD, at Sportsmed, on 26 March 2015.  Apart from her brief return to work, on 6 August 2014, she had been absent from the workplace since 27 August 2013. 

23. The current proceedings, in this court, relate to the circumstances surrounding Ms Cartisano’s return to work, following the former date.  Essentially, she asserts that she has not been reinstated to the same position, with the same terms and conditions, which she occupied prior to her unfair dismissal.  As such, she contends that the respondent has not abided by the order of the Full Bench of the FWC.  The respondent asserts otherwise.

24. The applicant has filed an affidavit in which she sets out the circumstances, which support her assertion that although she has physically returned to the workplace, she has not been properly reinstated by the applicant.  They are as follows:

    ·The office formerly used by her was no longer available for her use;

    ·She no longer had exclusive use of a computer, desk and office;

    ·She was now subject to her overtime work being approved;

    ·She had been prevented from doing HR work, which she had previously performed;

    ·She was subject to a roster, including doing floor work, which had not occurred previously;

    ·She was no longer responsible for equipment, maintenance and compiling tray lists;

    ·She was no longer responsible for recruiting, mediation, HR issues and staff appraisals.

25. Essentially, the applicant asserts that she was reinstated to a position which remained nominally manager of the CSSD and which attracted the same remuneration as previously, but the job was one which had been stripped of all administrative functions and entailed a significantly greater component of floor work.  In terms of the physical changes to the office situation, the applicant asserts that she has suffered a “loss of status and loss of effectiveness in performing the tasks of [her] position.”[4]

    [4]  See applicant’s affidavit at paragraph 109

26. Paula Diane Hill is the human resources manager of the respondent.  She takes issue with many aspects of the applicant’s evidence and asserts that she has been effectively been reinstated as required by the FWC order.  Ms Hill asserts that Ms Cartisano’s duties have not changed and the office situation has been modified for “operational reasons”.  Ms Hill further asserts that Ms Cartisano was not coping with her responsibilities, prior to her accident and several significant responsibilities had been removed from her duties, from March 2012 onwards. 

27. It is further Ms Hill’s positon that floor work has “always been an important part of the applicant’s duties”.[5]  She asserts that the applicant was contractually required to spend far in excess of 20% of her time performing floor work prior to her termination.

    [5]  See Ms Hill’s affidavit at paragraph 41

28. Initially, the applicant sought the various orders, to which the respondent objects, on an interim basis.  That is no-longer the case.  It is common ground between the parties that Ms Cartisano ceased work on 24 June 2015, due to incapacity but remains employed by Sportsmed.  It is uncertain if she will be able to return to the workplace.   Accordingly, it is not necessary for me to consider, in a practical sense, prior to any final factual determination, what orders, if any, should be put in place to bring about the constructive reinstatement of Ms Cartisano into the CSSD.

29. Due to the nature of legislative provisions, relating to the contravention of orders made by FWC, arising from unfair dismissal proceedings, the applicant is precluded from returning to the Commission to seek civil penalties and compensation in respect of the alleged contravention of any order requiring her reinstatement.  She must come to this court or the Federal Court to seek such a penalty and compensation.

30. These reasons for judgment are not directed to the resolution of the central evidentiary dispute between the parties.  Rather they centre on the appropriateness of a number of orders sought by the applicant in her amended application filed on 14 July 2015.

The applications

1. The applicant seeks a raft of orders subsidiary to her primary application that she be reinstated to “the position and employment which she held immediately before the termination of her employment, including its terms and conditions, location, duties, remuneration and working conditions.”[6]

   [6]  See amended application filed 14 July 2015 at order 1

2. These orders include a direction that she be provided with the same or equivalent office, as she previously occupied; be allowed to manage the CSSD; and be responsible for staff rosters, staff orientation and training programs; and undertake a number of delineated administrative responsibilities, within the CSSD.  All functions which the applicant asserts she formerly performed in her position.

3. The respondent, through its counsel, Mr Manos, submits that these orders are analogous to an order for specific performance and would inevitably entail the court, in effect, “micro managing” the business functions of the respondent.  It is Mr Manos’ submission that these orders are not capable of being enforced, by the court, and therefore should be dismissed at this stage of proceedings.

4. The applicant seeks the making of very many specific orders directed to the oversight of the CSSD, including such things as allowing her “to effectively manage all activities in the CSSD” and “to ensure effective customer service towards nurses and surgeons in the operating room.”[7]

   [7]  See amended orders at order 1.3.1 and 1.3.3

5. From the respondent’s perspective such orders have the potential to be unworkable and oppressive, particularly as they may lead to quasi-criminal sanctions being imposed upon it, if any of these orders are subsequently found to have been contravened.  In this respect Mr Manos relies on the following principal enunciated by the High Court Patrick Stevedores Operation No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors:[8]

   “… a person who is subject to a mandatory order attended by contempt sanction (which ‘must realistically be seen as criminal in nature’) ought to know with precision what is required; and, second, the possibility of ‘repeated applications for rulings on compliance’ with orders requiring a party to ‘carry on an activity, such as running a business over a more or less extended period of time’ should be discouraged.”

   [8]  See Patrick Stevedores Operation No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195CLR 1 at 46-47

6. In all these circumstances, the respondent seeks the striking out of very many of the orders sought by the applicant on the basis that, as currently framed, the various orders are unclear or require ongoing supervision from the court or, in the alternative, there is no evidence to support the applicant’s contention that these various duties have been taken away from her. 

7. The applicant contends that the legislative raison d’être of the Federal Circuit Court is to “operate as informally as possible … and to use streamlined procedures.”[9]  In this regard, Mr Radbone points to rule 4.02 of the Federal Circuit Court Rules which requires only that an application must “precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.”  In this context, Mr Radbone submits as follows:

   “The clear intention of the rules is to minimise costly and technical legal argument for each of the parties to provide reasonable notice of their case to the other, and for each case to be decided on its merits and with the minimum necessary formality in costs.”[10]

   [9]  See Federal Circuit Court of Australia Act 1999 at section 3(2)

   [10]  See applicant’s submissions at paragraph 4

8. By necessary implication, it is Mr Radbone’s submission that it is both premature and unduly technical for his client’s application to be truncated in the manner sought by Mr Manos. 

9. Mr Manos does not contend anything other than that Ms Cartisano is entitled to seek a remedy, in this court, pursuant to section 545 of the Fair Work Act if it is found that she has not been reinstated as required by the Full Bench of the Fair Work Commission.  His objection is to the orders requiring his client to do specific things, in the workplace, to which contempt provisions may apply. 

The legal principles applicable

1. Part 3-2 of the Fair Work Act deals with unfair dismissal. Division 4 provides remedies for unfair dismissal. In particular, as earlier indicated, pursuant to section 390 the FWC may order a person’s reinstatement.

1. Pursuant to section 394(1) the applicant applied to the FWC for an order granting her a remedy for her unfair dismissal.  As a consequence of her application to the Full Bench, the applicant has been successful in obtaining such a remedy.  Her reinstatement has been granted.

2. In this context, the provisions of section 405 are relevant.  This section reads as follows:

   “A person to whom an order under this part applies must not contravene a term of the order.”

   In a note to the section, it is designated as a civil remedy provision. 

3. Because section 405 is a civil remedy provision, its operation is governed by the provisions contained in chapter 4 of the Fair Work Act. In particular, pursuant to section 539 of the Act, upon the applicant establishing a contravention of an order arising pursuant to section 405 of the Act, made by FWC, she is entitled to apply to the Federal Court or this court for a penalty to be imposed upon the person, who has committed the relevant breach.

4. In addition, this court and the Federal Court may, pursuant to section 545(1) of the Fair Work Act, make any order that it considers appropriate, if it is satisfied that a person has contravened a civil remedy provision, such as the one provided by section 405 and pursuant to subsection (2) may make an order “awarding compensation for loss that a person has suffered because of [that] contravention.”

Discussion

1. The applicant commenced proceedings, in this court, on 21 April 2015, seeking an order that the respondent pay a pecuniary penalty and pay her compensation as a consequence of Sportsmed’s alleged failure to properly reinstate Ms Cartisano to her position as manager of the CSSD at Sportsmed’s medical facility.

2. In her amended application, the applicant seeks the following orders:

   “That the respondent pay compensation pursuant to section 545 of the Fair Work Act for loss which the applicant has suffered because of the respondent’s contravention and failure to comply with the orders made by the Full Fair Work Commission dated 12 March 2015.

   That the respondent pay the applicant a pecuniary penalty of five x 60 penalty units pursuant to sections 540, 546 and 539 of the Fair Work Act.”

3. Attached to order 2 are lengthy particulars, which detail why the applicant asserts she has not been reinstated to her position at the CSSD.  In addition, as previously indicated, Ms Cartisano has filed an extensive affidavit, which sets out her evidence and perspective on her return to work. 

4. Mr Manos does not seek the discharge of orders 2, 3, 4 (an application for interest) and 5 (an application for costs) of the applicant’s application.  Accordingly, as the proceedings remain unresolved, it will be necessary for the matter to be allocated a final hearing.  The parties estimate that it will take four days for the hearing to be completed. 

5. Accordingly, in all these circumstances, Mr Manos’ application has no implications in terms of the matter proceeding to trial.   Rather it has consequences for the content of the pleadings.  Regardless of what actual orders sought are pleaded, the factual dispute, between the parties, centres on whether the applicant was reinstated to her previous position as required by the order of the FWC Full Bench.

6. In this context, the function of the court will be to determine whether there has been a contravention of the order of the FWC Full Bench and, if so, what penalties and compensation should attach to it.   The first limb of this task is a question of fact.  At this stage, on the basis of the affidavit material filed, the parties have diametrically opposing views on this issue.

7. The legal considerations, which the court must apply to the factual circumstances as are determined following hearing, are set out by the High Court in Blackadder.  The High Court referred to the history of statutory reinstatement powers generally, emphasising the practical intent of that remedy when given to an industrial tribunal or court.  McHugh J said:

   “To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination.[11]

   [11] Blackadder v Ramsey Butchering Services Pty Ltd  (supra) at 544 [14]

8. Kirby J said:

   “By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment.

   The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.”[12]

   [12] Ibid at 549 [33]

9. Callinan and Heydon JJ said:

   “Reinstate literally means to put back in place. To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him.” [13]

   [13] Ibid at 565 [75]

10. Ms Cartisano asserts that she has not been placed in the situation which existed prior to her termination.  She argues that the status quo ante has not been maintained but rather has been subverted, although she accepts that the respondent has honoured many of its contractual obligations towards her, particularly in terms of payment. 

11. The respondent, through Ms Hill asserts otherwise.  Clearly this is a question of fact, which I cannot resolve at an interim stage.  It is also likely to be a question of degree.  Some aspects of Ms Cartisano’s situation will have remained the same before and after her termination.  Her formal title remains the same, as does the location of her duties in the CSSD. 

12. The controversy is likely to resolve around more subtle issues, such as duties perceived to have been taken away and changes arising because of the length of time Ms Cartisano was away from the workplace, which from the respondent’s perspective, have led to a need to make operational changes.

13. In this context, it is important to note that the court is not called upon, at this stage, to make any provisional or interim orders dealing with the practicalities of Ms Cartisano’s reinstatement to the CSSD, following the order of the FWC Full Bench, given her current situation.

14. In the context of an interim hearing, the various orders sought by the applicant might have had some utility, as they would have provided guidance as to how the interim application was to be resolved, if the court was satisfied that there was a sufficient basis to determine that the order of the FWC Full Bench had not been complied with.

15. However, the interim aspect of the application has been withdrawn.  Accordingly, whether the applicant’s office has been withdrawn from her and the other alleged changes to her work situation remain at large as areas of factual controversy been the parties.  In my view these orders are more analogous to particulars as to why the applicant has not been properly reinstated.

16. Rule 13.10 deals with the court’s power to make orders that proceedings be stayed, or dismissed generally.  The rule provides the following grounds for dismissal:

    The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

    (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

    (b) the proceeding or claim for relief is frivolous or vexatious; or

    (c) the proceeding or claim for relief is an abuse of the process of the Court.

17. On the basis of the High Court ruling in Patrick Stevedores Mr Manos submits that there is no reasonable prospect of the applicant obtaining the orders requiring the respondent to do specific things of a managerial nature, in its workplace, so far as the applicant is concerned and therefore these orders ought to be struck out entirely. 

18. Mr Manos also submits that there is no evidence to support the applicant’s assertion that Sportsmed has not complied with the reinstatement order.  This submission is made on the basis of Ms Hill’s evidence, in which she refutes the various assertions of Ms Cartisano regarding such things as her access to an office and computer and her various other responsibilities in the CSSD.

19. Gilmour J discussed an analogous provision in the Federal Court Rules in Dandaven v Harbeth Holdings Pty Ltd[14]

    (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;

    (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;

    (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;

    (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;

    (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;

    (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

    (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

    (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.

    [14] Dandaven v Harbeth Holdings Pty Ltd  [2008] FCA 955 at [6] cited by Judge Simpson in Martin v IC Frith & Associates [2013] FCCA 1745 at [7]

20. It is a significant thing to dismiss an aspect of an applicant’s claim for relief on a summary basis, prior to any exhaustive evaluation of the relevant evidence.  However, in the present case, it is hard to see that there will be any significant prejudice to the applicant if the respondent’s application is granted.

21. The situation would have been different if the matter was being dealt with at an interim stage.  In such a scenario, the court might have had to determine the manner in which the order of the Full Bench of the FWC should, in effect, be enforced, if there were grounds to establish that the order for reinstatement had not been complied with in the sense envisaged by the High Court in Blackadder.

22. However that is not necessary given Ms Cartisano is not proceeding with the interim aspect of her claim.  In this context, it is my view that the various orders which she seeks in respect of remediation of the workplace are essentially otiose.  The central issue in the case is whether Ms Cartisano was or was not properly reinstated to the status quo ante in real and practical terms, rather than in a tokenistic and begrudging manner, as she alleges.

23. For its part, Sportsmed denies any effective or passive resistance to the order of the FWC Full Bench.  Regardless of how the matter is pleaded, this central issue remains live.  In this context, I consider that there is merit to Mr Manos’ submission that the various orders, which he seeks to dismiss, have no utility.  I agree. 

24. To my mind these matters, although expressed as orders, are really analogous to the particulars as to why it is alleged that Ms Cartisano’s reinstatement has not been effectively made and why she is entitled to compensation pursuant to the Fair Work Act.

25. During the course of the argument of this matter, I likened the dispute between the parties, regarding whether the challenged orders should or should not stand to “two bald men arguing over a comb.”[15]I see no reason to abandon that simile. 

    [15] This is how the Argentinian writer, Jorge Luis Borges, referred to the Falkland War, as quoted in Time magazine (14 February 1983)

26. Regardless of the standing of these orders, there is clearly a genuine dispute, between the parties, regarding the circumstances surrounding Ms Cartisano’s return to the workplace, as directed by the Full Bench of the FWC. 

27. In addition, the scope of that dispute is, in my view, also clearly delineated between the parties, chiefly as a consequence of the affidavit material which has been filed.  As such, given the abandonment of the interim application, the utility of the extensive argument about these particular orders seems to me to have been questionable.

28. I am satisfied that there is no utility in allowing the orders subsidiary to order 1, of the orders sought, to remain standing.I reach this conclusion because an order requiring reinstatement has already been made by the Full Bench of the FWC and in this context the various subsidiary orders are directed towards how the court is to implement this order, particularly overseeing how the respondent manages its business, on a day to day basis, within the framework of that order. 

29. The impetus for the court, at this stage, should be to ensure that Ms Cartisano’s claim, in this regard, is properly delineated and particularised, both so that the respondent may know what it has to answer and the court is able to deal with the case as effectively as possible.  It seems to me that both these objectives have been achieved through the material already filed. 

30. Mr Manos does not necessarily degree with this assessment.  He seeks orders that Ms Cartisano provide a statement of claim and that the matter proceed by way of pleadings.  Mr Radbone is keen to minimise the potential for his client to be exposed to unnecessary expense and opposes such an approach. 

31. In its pursuit of the aspiration to be just, efficient and economical, provided by both its Act and Rules, the Federal Circuit Court is directed to act as informally as possible and to use streamline procedures. 

32. Part 4 of the Rules deals with how applications are to be started.  In particular, Rule 4.05 provides an applicant, in a general federal law proceeding, with the entitlement to elect to dispense with filing an affidavit in support of an application and in lieu thereof to file either a statement of claim or points of claim.

33. If this option is pursued, the respondent concerned must file either a defence or points of defence.  Accordingly, the court, at this stage of proceedings, is focussed on what is likely to be the best method of defining the issues in the case – whether that be by affidavit; pleadings; or points of claim – and what is the most appropriate of these given the needs of the litigation concerned.

34. In this case, as I say, it seems to me that the issues in contention between the parties have been largely identified by the affidavits filed by each of them respectively.  In these circumstances, I have no desire to cause the parties to have to duplicate material already filed or jump through hoops of an empty procedural nature.

35. However, with the demise of the orders subsidiary to order one, the applicant should provide further particulars as to why she asserts that she has not been reinstated to the position and employment which she held immediately before the termination of her employment. 

36. In my view this should be done in the form of points of claim, to which the respondent can respond by points of defence.  This is likely to be the most cost efficient and expedient way to proceed and, if there is any imprecision regarding what issues are in dispute between the parties, rectify that imprecision.

37. I will allocate a five day hearing for the matter at the earliest dates available to me, which regrettably will not be until May 2016.  I will make the necessary procedural orders in respect of the filing of affidavit evidence in advance of the trial dates.

38. I will also list the matter for further directions on 2 December 2015 at 9:30am to assess the suitability of the matter to be referred to some form of appropriate dispute resolution process.  In my view, it is not appropriate to make any order as to the costs of the proceedings.

39. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  13 August 2015