Chapple v Workpac Pty Ltd

Case [2024] FedCFamC2G 1364

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Chapple v Workpac Pty Ltd [2024] FedCFamC2G 1364

File number(s): PEG 215 of 2022
Judgment of: JUDGE LUCEV
Date of judgment: 11 December 2024
Catchwords:

PRACTICE AND PROCEDURE – Application in a proceeding for lawyer for second respondent to be removed as lawyer on the record – relevant legal principles – applicant formerly deployed to mining sites by her employer – termination of applicant’s employment allegedly related, in part, to raising of sexual assault allegations concerning other employees on a mining site -  alleged sexual assault of current employee of a contractor reported at a mining site several months after termination of the applicant’s employment – applicant in correspondence with executives of miner and her former employer’s solicitors in relation to alleged sexual assault of current employee – whether solicitor acting as mere mouthpiece for former employer – whether solicitor misrepresented circumstances in relation to sexual assault – inherent jurisdiction of a court over its officers and processes – whether proper administration of justice requires that solicitor for former employer be restrained from acting for former employer

INDUSTRIAL LAW – Alleged contravention of general protections – alleged adverse action – termination of applicant’s employment

Legislation:

Fair Work Act 2009 (Cth) s 570

Legal Profession Uniform Law Application Act 2022 (WA)

Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (WA) rr 3, 17, 22, 34
Cases cited:

Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 5) [2016] WASC 263

Charisteas v Charisteas [2022] FedCFamC1A 160; (2022) 372 FLR 412

Dealer Support Services v Motor Trades Association of Australia [2014] FCA 1065; (2014) 228 FCR 252; (2014) 318 ALR 507; (2014) 108 IPR 26

Grimwade v Meagher [1995] 1 VR 446

Holborow v MacDonald Rudder [2002] WASC 265

Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

Osferatu v Osferatu [2015] FamCAFC 177; (2015) 301 FLR 295; (2015) 53 FamLR 433; [2015] FLC 93-666

Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659

Division: Division 2 General Federal Law
Number of paragraphs: 26
Date of last submission/s: 9 August 2024
Date of hearing: 9 August 2024
Place: Perth
Applicant: In person
Solicitor for the First Respondent: Excused from attending
Counsel for the Second Respondent: Mr C Beetham
Solicitor for the Second Respondent: Hall and Wilcox Lawyers

ORDERS

PEG 215 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AMY CHAPPLE

Applicant
AND:

WORKPAC PTY LTD ACN 111 076 012

First Respondent

PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248)

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1.That part of the Applicant’s Application in a Proceeding filed 6 May 2024 seeking that Ms Rosemary Roach, a solicitor for the Second Respondent, be stood aside from further participation in these proceedings, being proposed order 10 in that…

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AGLC
Chapple v Workpac Pty Ltd [2024] FedCFamC2G 1364
Case
[2024] FedCFamC2G 1364
Decision Date

CaseChat Overview and Summary

The case of Chapple v Workpac Pty Ltd involved the applicant, Ms Chapple, who filed an application and claim against the respondents, Workpac Pty Ltd and Pilbara Iron, alleging that adverse action was taken against her in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act). The dispute included issues related to Ms Chapple's reporting of a sexual assault on another employee. The court was required to decide whether Ms Roach, the solicitor for Workpac, should be removed from acting as lawyer on the record for the second respondent. The key legal issues involved whether Ms Roach was acting as a mere mouthpiece for her former employer, whether she misrepresented circumstances in relation to the sexual assault, and whether the proper administration of justice required her removal. The court also had to consider the inherent jurisdiction over its officers and processes.

The court examined the communications between Ms Chapple and Ms Roach, and assessed whether Ms Roach was acting independently in her role as a solicitor or merely relaying instructions from her client. The court noted that Ms Roach had provided accurate information regarding the sexual assault incident, corrected false statements promptly, and acted in accordance with her professional obligations. The court concluded that there was no evidence to suggest that Ms Roach was not acting independently or that she had misrepresented the circumstances. The court found that the proper administration of justice did not require Ms Roach to be stood aside in these proceedings. The court dismissed the stand aside application and ordered that the parties would be heard as to costs, if any. The court highlighted the importance of solicitors acting independently and exercising forensic judgments called for during the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The basic background facts necessary to an understanding of the Stand Aside Application are as follows:(a)on 7 November 2022 Ms Chapple filed an application and claim alleging that adverse action was taken against her by the respondents, and relevantly including issues related to Ms chapple’s reporting of a sexual assault on another employee, in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”) (“GP Claim”); and(b)the GP Claim relates to the period that Ms Chapple was employed by the first respondent, Workpac Pty Ltd (“Workpac”) and deployed to Pilbara Iron, namely 2 August 2021 to 16 August 2022. Responses to the GP Claim were filed by Workpac and Pilbara Iron on 16 December 2022 and 14 February 2023 respectively;(c)on 22 June 2023 Rio Tinto Limited (“Rio Tinto”), the parent company of Pilbara Iron, issued a notice entitled “CMOne Supplier Brief” to all suppliers in Western Australia, which advised that a sexual assault had been reported at “a Rio Tinto site”. The CMOne Supplier Brief reported the fact of an incident, but did not identify the location of or detail about the incident, and stated that Pilbara Iron would not be providing any further information about it without the consent of the impacted person. A redacted copy of the original CMOne Supplier Brief is attached as Annexure A (pp 5-7) to the affidavit of Ms Holly Gretton affirmed on 5 August 2024 (“Gretton Affidavit”). The Court notes that the version of the CMOne Supplier Brief attached as annexures AC-07 (p 36) and AC-14 (p 113) to Ms Chapple’s affidavit affirmed on 16 July 2024 (“Chapple July 2024 Affidavit”) has been amended, by parties unknown to Pilbara Iron, to add “Rape Incident (… Village, …)” as a header (“Altered CMOne Supplier Brief”), and that that header is not in the original document issued by Pilbara Iron (the Court has deleted both the name and location of the “Village” in these Reasons for Judgment, and will refer to the place where the sexual assault took place as the “Village”);(d)on 12 July 2023 Ms Chapple emailed several Pilbara Iron employees (“12 July 2023 Chapple Email”). In the 12 July 2023 Chapple Email, Ms Chapple said that “[t]his week” she had heard there had been “another Rio Tinto rape, this time at …Village”: Chapple July 2024 Affidavit, annexure AC-08 at pp 38-39;(e)on 25 July 2023 Ms Chapple sent a letter to the lawyers acting for Workpac and Pilbara Iron in these proceedings (“25 July 2023 Chapple Letter”). In the 25 July 2023 Chapple Letter Ms Chapple referred to the 12 July Chapple 2023 Email and again referred to “another rape incident, this time at … Village”: Chapple July 2024 Affidavit, annexure AC-14 at pp 88-92; particularly p 90-91;(f)at 2:40pm on 14 August 2023 Ms Roach sent a letter to Ms Chapple (“14 August 2023 Roach Letter”) in which Ms Roach referred to the 25 July 2023 Chapple Letter, and to the 12 July 2023 Chapple Email. Ms Roach:(i)advised that Rio Tinto was “not aware of any incident of this nature at … Village”;(ii)invited Ms Chapple to provide any information she could in relation to the incident;(iii)noted the sensitivity of the matter; and(iv)provided Ms Chapple with:(A)a number of different options to provide information if she wished to do so; and (B)the contact telephone number for Rio Tinto’s confidential employee assistance provider;(g)on 14 August 2023 Ms Chapple sent a letter to the lawyers for Workpac and Pilbara Iron (“14 August 2023 First Chapple Letter”), in which Ms Chapple made several allegations about both Pilbara Iron and the firm of solicitors of which Ms Roach is a partner, to the effect that Pilbara Iron and the solicitors would “provide excuses by way of “plausible deniability””: Chapple July 2024 Affidavit, annexure AC-14 at p93.;(h)later on 14 August 2023 Ms Chapple sent another letter to the lawyers for Workpac and Pilbara Iron (“14 August 2023 Second Chapple Letter”), both to provide an update to the 14 August 2023 First Chapple Letter, and to respond to the 14 August 2023 Roach Letter, which Ms Chapple had not seen at the time of sending the 14 August 2023 First Chapple Letter: Chapple July 2024 Affidavit, annexure AC-14 at pp 111-117. In the 14 August 2023 Second Letter Ms Chapple enclosed the Altered CMOne Supplier Brief to which the words “Rape Incident (…Village …)” had been added: annexure AC-14 at p 113;(i)on 21 August 2023 Ms Roach emailed Ms Chapple (“21 August 2023 Roach Email”). and confirmed receipt of the 14 August 2023 First and Second Chapple Letters. Ms Roach confirmed that Rio Tinto was aware of the incident referred to in the CMOne Supplier Brief. Ms Roach explained that, based on the information previously provided by Ms Chapple in the 12 July 2023 Chapple Email and the 25 July 2023 Chapple Letter, Rio Tinto was not aware that Ms Chapple was referring to the specific incident referred to in the CMOne Supplier Brief. Ms Roach told Ms Chapple that Rio Tinto had taken steps to ensure the impacted person receives care and support: Chapple July 2024 Affidavit, annexure AC-14 at p 108; and(j)on 21 August 2023 Ms Chapple emailed Ms Roach (“21 August 2023 Chapple Email”) posing a number of questions: Chapple July 2024 Affidavit at p 118. Ms Chapple indicated she would add her questions to “the RFI Tracker”: Chapple July 2024 Affidavit, annexure AC-14 at pp 100-106; on 5 September 2023 Ms Roach responded: Chapple July 2024 Affidavit, annexure AC-14 at p 120, as follows: Dear Ms Chapple Thank you for your further email.We confirm that Rio Tinto is only aware of the one incident in the period you refer to, being the incident referred to in the correspondence from Matt Holcz and Richard Cohen which is attached to your letter dated 14 August 2023. Rio Tinto is unable to provide any further details in relation to this incident out of respect for the impacted person and due to confidentiality obligations.Rio Tinto has requested that we remind you that you can access Rio Tinto's confidential employee assistance provider BSS, free of charge, on … [number omitted]Yours sincerely Rosemary Roach │PartnerTHE EVIDENCEChapple May 2024 Affidavit

Decision

Reasons for decision

It follows that no fair-minded reasonably informed member of the public might, or would, have concluded that the proper administration of justice requires that Ms Roach be stood aside in these proceedings. CONCLUSION AND ORDERS The Court has concluded that, for the reasons set out above, the Stand Aside Application must be dismissed. There will be an order accordingly. The Court will hear the parties as to costs, if any: FW Act, s 570(2).

Ratio Decidendi

Legal Principle Established

The following rules from the LP Solicitor’s Conduct Rules which are not specifically identified by Ms Chapple, but which may be relevant to the Stand Aside Application are rr 3.1, 17.1 and 22.1 and 22.2 which are as follows:3. Paramount duty to the court and the administration of justice3.1A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.17. Independence – avoidance of person bias17.1A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.22. Communication with opponents22.1A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).22.2A solicitor must take all necessary steps to correct any false or misleading statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false or misleading.SUBMISSIONSMs Chapple’s submissions Notwithstanding the Court’s orders of 21 June 2024 Ms Chapple did not file written submissions in relation to the Stand Aside Application. Ms Chapple did however make oral submissions at hearing of the Stand Aside Application (see Transcript, 9 August 2024, pp 3-9 and 15), which can be summarised as follows:(a)it is a privilege for lawyers to become officers of the court and to have a detailed understanding of the law and to know how to apply it in the interests of their primary duty to the court, their clients, their colleagues and their opponents and to the public in general, as stated in the LP Uniform Law;(b)where there is a conflict with the duty owed to a court a lawyer must disregard their client’s instructions;(c)that the GP Claim concerns a complaint in relation to Ms Chapple’s need to report matters, in her work capacity, including sexual assaults in the workplace, and that she subsequently lost her job with Workpac as a consequence of communicating a 2022 sexual assault to senior executives at Rio Tinto;(d)that on 10 June 2023 she found out that there had been a sexual assault at the Village, and that on 12 July 2023 she wrote to Rio Tinto executives about this, and that it was referred to in a meeting the following day;(e)that the sexual assault was a workplace offence reportable to WorkSafe, and it had not been reported by Rio Tinto, contrary to what Ms Chapple said, at the time, was a legal obligation; (f)in relation to the sexual assault reported to senior executives at Rio Tinto on 12 July 2023 (after Ms Chapple’s employment was terminated) the correspondence between her and Ms Roach led Ms Chapple to be concerned about the veracity of any future information that might be supplied to her by Ms Roach in relation to these proceedings; and(g)because the sexual assault related to the same type of issue as that which caused her departure from Rio Tinto and Workpac, and because Ms Roach and Workpac knew that Ms Chapple had PTSD and depression as a result of trying to raise these issues, she believed that Workpac and Rio Tinto did not follow the necessary procedures under the FW Act.Pilbara Iron’s submissions