Colton v Dhelkaya Health
[2023] FedCFamC2G 951
•24 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Colton v Dhelkaya Health [2023] FedCFamC2G 951
File number(s): MLG 1635 of 2022
MLG 1867 of 2022Judgment of: JUDGE MANSINI Date of judgment: 24 October 2023 Catchwords: PRACTICE AND PROCEDURE – adverse action claims to be heard together – where applicants made interlocutory applications for leave to file amended statement of claim, make discovery and adduce expert medical evidence – where respondent contended pleadings and proposed amendments were in each case inadequate, embarrassing and vague – determined, in each case, that the pleadings be struck out in their entirety and parties have leave to re-plead. Legislation: Fair Work Act 2009 (Cth) ss.340, 341, 342, 343, 360, 361, 539, 550, 570, 793.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.1.06
Federal Court Rules 2011 (Cth) rr.16.02, 16.03
Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union [2000] FCA 1793
Dare v Pulham (1982) 148 CLR 658
Davids Distribution Pty Ltd v National Union of Workers as cited in Forshaw v Qantas [2023] FCA 957
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72
Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536
Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
Weddall v Rasier Pacific Pty Ltd [2023] FCA 59
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 10 October 2023 Place: Melbourne Solicitor for the Applicants: Mr George Ryan Counsel for the Respondent: Mr Matthew Minucci Solicitor for the Respondent: Minter Ellison
Table of Corrections 12 February 2024 At paragraph 34, the word “ busine2ss” has been replaced with “business”. ORDERS
MLG 1635 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LEONARD BERNARD COLTON
Applicant
AND: DHELKAYA HEALTH
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.In matter MLG 1635 of 2022, the Applicant’s statement of claim filed 12 January 2023 be struck out in its entirety.
2.In matter MLG 1635 of 2022, the application in a proceeding filed on 31 August 2023 is dismissed and the Applicant is allowed until 23 November 2023 to file and serve an amended statement of claim which properly pleads the alleged contraventions of ss.340 and 343 of the Fair Work Act 2009 (Cth) (Act).
3.At 9.30am on 12 December 2023, the matters will be listed for directions as to further case management before Her Honour Judge Mansini.
AND THE COURT NOTES THAT:
A.The Applicants may consider adopting a table format in order to clearly organise each element of the alleged contraventions of ss.340 and 343 of the Act alongside the material facts on which the Applicants rely to make out the essential elements of each claim.
B.In respect of the alleged contraventions of s.340 of the Act, that may entail precise identification of:
(a)the claimed source and exercise or proposed exercise of each workplace right; and
(b)each claimed adverse action said to have been taken or threatened because of the exercise or proposed exercise of that workplace right,
together with only the material facts necessary to prove each element of those claims.
C.In respect of the alleged contraventions of s.343 of the Act, that may entail precise identification of:
(a)the claimed application of illegitimate pressure, by reference to alleged unlawful, illegitimate or unconscionable means; and
(b)the claimed intent to coerce the Applicants to exercise or not exercise a proposed workplace right,
together with only the material facts necessary to prove each element of those claims.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
MLG 1867 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BERNADETTE THERESE MAYNE
Applicant
AND: DHELKAYA HEALTH
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.In matter MLG 1867 of 2022, the Applicant’s statement of claim filed 12 January 2023 be struck out in its entirety.
2.In matter MLG 1867 of 2022, the application in a proceeding filed on 31 August 2023 is dismissed and the Applicant is allowed until 23 November 2023 to file and serve an amended statement of claim which properly pleads the alleged contraventions of ss.340 and 343 of the Act.
3.At 9.30am on 12 December 2023, the matters will be listed for directions as to further case management before Her Honour Judge Mansini.
AND THE COURT NOTES THAT:
A.The Applicants may consider adopting a table format in order to clearly organise each element of the alleged contraventions of ss.340 and 343 of the Act alongside the material facts on which the Applicants rely to make out the essential elements of each claim.
B.In respect of the alleged contraventions of s.340 of the Act, that may entail precise identification of:
(a)the claimed source and exercise or proposed exercise of each workplace right; and
(b)each claimed adverse action said to have been taken or threatened because of the exercise or proposed exercise of that workplace right,
together with only the material facts necessary to prove each element of those claims.
C.In respect of the alleged contraventions of s.343 of the Act, that may entail precise identification of:
(c)the claimed application of illegitimate pressure, by reference to alleged unlawful, illegitimate or unconscionable means; and
(d)the claimed intent to coerce the Applicants to exercise or not exercise a proposed workplace right,
together with only the material facts necessary to prove each element of those claims.
[Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).]
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicants were employed by the Hospital in nursing roles until their respective dismissal (Mr Colton on 14 Feb 2022 and Ms Mayne on 1 April 2022) following their respective refusals to comply with directions to take the COVID-19 vaccine.
The Applicants seek relief in the form of compensation or damages for what they claim was conduct in which the Hospital engaged in contravention of various provisions of Part 3-1 of the Fair Work Act 2009 (Cth) (Act).
Presently to be determined is an application for interlocutory orders that:
·the Applicants be allowed leave to file an amended statement of claim;
·the Applicants be granted various categories of discovery; and
·the Applicants be allowed leave to adduce expert medical evidence.
The Applicant has also entered a number of subpoenas requiring the attendance of employees (or former employees) of the Hospital to give evidence at the final hearing of the matter.
The Hospital opposes all applications and the subpoenas.
There being orders that the two applications be heard together, these reasons relate to both applications and identify any relevant distinctions.
Procedural context
These proceedings were commenced by applications filed by Mr Colton on 15 July 2022 and Ms Mayne on 12 August 2022.
On 28 November 2022, the parties consented to orders that the matters be heard together, that evidence and materials in one matter be received and taken to be filed in the other.
The Applicants subsequently elected and were ordered to proceed by statement of claim, which were filed on 12 January 2023 (Current SOCs).
The Hospital filed a defence in relation to each Current SOC on 20 February 2023 which, in each case, criticised paragraphs of the Current SOCs on grounds that they were vague, embarrassing, lacking in particulars and liable to be struck out.
In June 2023, the parties participated in mediation but the matter did not resolve.
At the next directions on 10 August 2023, the Applicants’ representative sought to hand up proposed amendments to the Current SOCs which the Hospital’s representative indicated would be opposed and a program was set down to enable the exercise to progress in a fair and orderly fashion.
On 31 August 2023, in accordance with the program, the Applicants filed their Amended SOCs as an annexure to affidavits deposed by their legal representative and other interlocutory applications for discovery and to adduce medical evidence. On 14 September 2023, the Hospital filed their submissions in response to the proposed amendments and other interlocutory requests.
On 6 October 2023, the Applicants’ representative sent emails to chambers which attached: further proposed amendments to each of the Amended SOCs; and a reply to the Hospital’s submissions. At the hearing on 10 October 2023, the Hospital opposed receipt of the further proposed amendments to the Amended SOCs on the basis that this was not in compliance with orders of the Court and unfair given it had filed materials and prepared its cases on the Amended SOCs. The Applicants’ representative described the further proposed amendments to the Amended SOCs as containing corrections of typographical errors. Regardless of how the error(s) occurred or were sought to be characterised, at least in some respects the further proposed amendments were identified as of some significance albeit not extensive. At the interlocutory hearing, the Court was addressed about the Amended SOCs as filed in accordance with the Court’s orders.
Statutory framework
The amended statements of claim purport to charge the Hospital with having contravened two provisions of Part 3-1 of the Act, in relation to each Applicant, namely ss.340(1) and 343.
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect “workplace rights” and the exercise of those rights.
In relation to the first ground specified in the original application, the starting point is s.340, which relevantly provides (and at all relevant times, provided):
340 Protection
(1)When a person must not take adverse action
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
“Adverse action” is defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee;
(b) injures the employee in his or her employment;
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under certain State, Territory and Commonwealth laws and employees in certain stand-down situations: s.342(3).
“Workplace right” is defined at s.341, in three broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
“Workplace law” is defined to include the Act and “..any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”: s.12 of the Act.
Section 343 of the Act provides (and provided) a prohibition on a person organising, taking or threatening to organise or take any action against another person with intent to coerce the other person or a third person to exercise or not exercise or propose to exercise or not exercise a workplace right.
It is well-established that coercion involves the application of illegitimate pressure to induce the other party to act: Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union [2000] FCA 1793. The pressure being only illegitimate if it involves unlawful threats or amounts to unconscionable conduct: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202. Further, in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 the Full Court held at [174] that:
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means.
Relevant to both grounds, Division 7 is titled “Ancillary Rules” and recognises that some action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which adverse action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Also relevant to the question of proof is s.793 which deals with liability of a body corporate. It provides that, in establishing conduct of a body corporate, it is necessary to establish conduct of an officer, employee or agent within the scope of their actual or apparent authority. Further, that state of mind will be established if it is shown that the conduct was engaged by such person and that the person had the state of mind. In this respect, the identification of the person or persons who are said to have engaged in the conduct or by which the respondent is said to be taken to have held the relevant state of mind, becomes relevant: Davids Distribution Pty Ltd v National Union of Workers as cited in Forshaw v Qantas [2023] FCA 957 at [43]-[45] (Snaden J).
Each of ss.340 and 343 are civil remedy provisions. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of those sections: s.539(2). That power extends to relief in the form of declarations, compensation and penalties. A person may be taken to have contravened a civil remedy provision if they were in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention: s.550(1).
A “material fact” is one the proof of which is essential to the existence of a cause of action or defence that a party seeks to advance: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 246-247 per Wilson J.
The following principles were extracted in Weddall v Rasier Pacific Pty Ltd [2023] FCA 59 at [71] per Snaden J:
(1)a pleading that baldly alleges a statutory contravention by simply repeating the language employed by a relevant provision is liable to be struck out: McKellar v Container Terminal Management ServicesLtd [1999] FCA 1101; (1999) 165 ALR 409, 418 [23] (Weinberg J);
(2)in a civil suit for the recovery of a pecuniary penalty, it is especially important that those accused of a contravention know precisely the case that is to be made against them: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298, 311 [63] (Logan, Bromberg and Katzmann JJ); and
(3)where extensive passages within a pleading are liable to be struck out, it is within the court’s discretion to strike out the whole of the pleading and to require that the party who authored it begin afresh: Sabapathy v Jetstar Airways[2021] FCAFC 25; (2021) 283 FCR 348, 359 [33] (Logan and Katzmann JJ, with whom Flick J agreed).
The principles applicable to applications for leave to amend are well established and include the following in Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536 at [55]:
(1)The starting point is “that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided”: Oswal v Apache Corporation (No 3) [2014] FCA 835 at [5];
(2)an amendment will “ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment”: S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1035 (“S.P.I. Spirits”) at [14];
(3)leave should be granted unless the proposed amendment “is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner” indicated above: S.P.I. Spirits at [17];
(4)the allowance of an amendment before the commencement of a trial “stands in a very different position from amendment towards the end of a trial”: S.P.I. Spirits at [18]; and
(5)relevant matters the Court may consider include the nature and importance of the amendment to the party applying for it and the prejudice caused by the amendment: Tamaya at [127].
It is well established that the purpose of pleadings is to identify the material facts upon which the parties intend to rely at trial and thereby define the issues to be tried with sufficient clarity to enable the parties to understand, and have an opportunity to meet, the case advanced against them: Dare v Pulham (1982) 148 CLR 658, 664 per the majority. Rule 16.02 of the Federal Court Rules 2011 (Cth) (FCA Rules) reflects that objective (agreed is applicable here pursuant to r.1.06(2) or (3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOA (GFL) Rules) and Schedule 1) and provides that:
(1) A pleading must:
(a)be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b)be as brief as the nature of the case permits; and
(c)identify the issues that the party wants the Court to resolve; and
(d)state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(e)state the provisions of any statute relied on; and
(f)state the specific relief sought or claimed.
(2) A pleading must not:
(a)contain any scandalous material; or
(b)contain any frivolous or vexatious material; or
(c)be evasive or ambiguous; or
(d)be likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f)otherwise be an abuse of the process of the Court.
(3) A pleading may raise a point of law.
(4)A party is not entitled to seek any additional relief to the relief that is claimed in the originating application.
(5)A party may plead a fact or matter that has occurred or arisen since the proceeding started.
The Current and Amended SOCs
The Current SOCs and Amended SOCs respectively commence with a series of numbered paragraphs that appear to comprise the factual background.
The preliminary paragraphs cover the Applicants’ respective terms of employment, their respective roles including as “health and safety representatives” (which are not defined by reference to the nature of such appointment) (HSRs), the enterprise agreement said to apply to their employment and the business of the Hospital.
The pleadings then progress to outline, by reference to approximate dates, decisions of the Hospital to introduce requirements to wear a face mask, supply and administration of vaccines to staff and patients and urging staff to get vaccinated at special clinics set up at the Hospital. There is a generalised allegation that these decisions raised questions of safety and risk for staff and patients but were made without consultation with staff or the Hospital’s HSRs.
There are then a series of generalised assertions in each pleading that:
(a)it being their respective duty, as a HSR and as an employee with professional knowledge and experience in health and nursing, to raise any issue or concern about health and safety with their employer, the Applicants raised health and safety concerns with the introduction of mandatory work practices requiring mask wearing and in relation to recommending and administering COVID-19 vaccines - and Ms Mayne sought further information about the vaccine contents and safety checks;
(b)the Applicants’ concerns were dismissed by their supervisors;
(c)it was made clear that there would not be and there was no consultation;
(d)the Applicants were prohibited from answering patient inquiries about receiving the vaccines, warnings were given (to Mr Colton in April 2021 and for Ms Mayne as given to staff but no date specified) about bringing written material in to the Hospital raising doubt over the safety and effectiveness of the vaccines being administered and by this it was implicit that staff were not to discuss or raise their concerns about the roll out of vaccines with other employees, or answer patient questions, otherwise may face disciplinary action including a report to the Australian Health Practitioner Regulation Agency which had power to deregister them; and
(e)that some staff members experienced unexpected adverse reactions after being vaccinated which were not investigated or reported to regulatory agencies and the Applicants raised their concerns that unexpected adverse reactions were not being reported to regulatory agencies and that no advice was being sought about continuing the vaccination program; and
(f)these responses to the Applicants’ concerns about the Hospital’s vaccination program caused each Applicant great distress and anxiety.
The next part of the Current SOCs and Amended SOCs outline a direction of the Hospital given on 25 August 2021 that the Applicants were required to be vaccinated with one of the COVID-19 vaccines by 16 September 2021 which directions were reiterated in an email of 8 September 2021 and, it is asserted, were given without consultation.
The circumstances of each Applicant following the 25 August 2021 direction are outlined in the paragraphs that follow by reference to dates of leave taken, dates of correspondence between each Applicant and the Hospital and their respective termination dates. In summary, Mr Colton took a period of long service leave and then sought to take sick leave which was refused because he was unvaccinated. Ms Mayne provided a medical exemption which was rejected then took a period of unspecified leave until her dismissal. Both were dismissed by letter of different dates which are included in the Current SOCs and Amended SOCs.
After progressing through that course, the Current SOCs and Amended SOCs make assertions about the operation and effect of the “COVID-19 Mandatory Vaccination (Specific Facilities) Order 2022 (No.6)” and further generalised assertions in terms that: since 2021 the Hospital has been in a “delivery of care emergency” with patient numbers having doubled, staff to patient ratios exceeded and ignored and remaining staff having routinely been required to work additional shifts.
The balance of the Current SOCs and Amended SOCs are organised under the headings:
·Application of Part 3-1 of the Fair Work Act 2009;
·The Respondent’s actions contravened Fair Work Act section 340(1);
·The Respondent’s actions contravened Fair Work Act section 343; and
·Section C.
Under the headings “Application of Part 3-1 of the Fair Work Act 2009” in the Current SOCs and Amended SOCs, there is some identification of the “workplace laws” and “workplace instrument” which would appear to comprise the articulation of the Applicants’ “workplace rights”. However there is at least one alleged “right” with no identification of its source as to constitute a “workplace right”. That is, by the Amended SOCs, the Applicants sought to add a reference to “a right to sick leave” - the source of which is not identified, whether as a workplace right for the purposes of the definition at s.341 of the Act or at all.
In this section, there are also claims to have exercised “workplace rights” by reference to certain paragraphs of the earlier background facts. When those cross-references are traced, the background facts are almost entirely unspecified and vague. For example:
(a)In relation to Mr Colton, at paragraph 48 it is claimed that he exercised “the above workplace rights” by requesting consultation before change occurred in his employment conditions and by raising the concerns set out in paragraphs 11 and 28. Turning then to paragraph 11, there is no more than a bald assertion that Mr Colton discussed the introduction of work practices with work colleagues and raised health and safety concerns posed by these policies with supervisors. And, at paragraph 28, it is claimed that the Applicant told unidentified “managers” of the Hospital in “that meeting” that he had not refused to be vaccinated only declined to do so whilst awaiting answers to the questions he had raised about safety and efficacy of the vaccines.
(b)In relation to Ms Mayne, at paragraph 51 it is claimed that she exercised “the above workplace rights” by requesting consultation before any change occurred in her employment conditions and by raising the concerns set out in paragraphs 11, 12, 18, 22 and 30 above. To demonstrate the example it is only necessary to look at paragraphs 11 and 12, where it is generally claimed that the Applicant raised concerns about wearing face masks which were dismissed and that she raised concerns with unidentified persons about the safety and efficacy of the vaccines and sought information about their contents and safety.
In both examples, the pleadings are vague and unclear. One is left to ponder: Which workplace right(s) were sought to be exercised? When were the workplace right(s) exercised? Who were the relevant human actors involved in the alleged conduct, e.g. to whom was each concern raised as to establish the conduct, state of mind or an exercise of the workplace right?
A list of alleged adverse actions are found in each of the Current SOCs and Amended SOCs under the headings which refer to contraventions of s.340. Some, but not all, are identified by reference to a date or date range. There is then a brief articulation of a series of reasons why the adverse actions were said to have been taken, to be read either by cross-reference to a multitude of paragraph references in the background facts or as a stand-alone assertion which may be characterised as no more than a mere recitation of the statutory language. Even when read with the background facts, these problems are compounded by the fact that there is either no or insufficiently generalised attribution of the claimed conduct (ie. the acts or omissions of individuals) to an officer, employee or agent of the Hospital or the circumstances that exist to associate that conduct with that of the body corporate pursuant to s.793 of the Act.
Under the headings that allege contravention of s.343, in the Amended SOCs it is plead that the Hospital took “the following actions affecting the workplace rights of the Applicant”, followed by a list of alleged actions and a general statement that the purpose of those actions was to coerce the Applicants into complying with the Hospital’s directions to receive one of the COVID-19 vaccines being administered in the Hospital contrary to the Applicants’ assessment that the vaccines were not safe or without risk to their own health and safety and to the health and safety of others. There are a series of paragraphs that refer to the negation of choice and intent to coerce the Applicants into complying with the Hospital’s directions to receive a COVID-19 vaccine. Again there is no identification of the person or persons who are said to have engaged in the conduct (that is, who organised, took, threatened to organise or threatened to take action) by which the Hospital is taken to have possessed the relevant intent for the purposes of s.343.
Part C of the Current SOCs and Amended SOCs outlines the relief sought which is limited to compensation or damages. Here, the Applicants do not seek declarations of contraventions or the imposition of pecuniary penalties.
Resolution
It was accepted that the FCA Rules apply to the present case, whether they were to be adopted in their entirety (my preference, for ease of reference and given their more comprehensive provision for pleadings) or in part as the FCFCOA (GFL) Rules may be read: r.1.06(2) FCFCOA (GFL) Rules.
Rule 16.03(2) of the FCA Rules provides that a party need not plead a fact if the burden of proving that fact does not lie with them. Section 361(1) contains a rebuttable presumption which operates to assist an applicant to prove that which is alleged. Put another way, the reversal of the onus at s.361 “throws onto respondents the onus of proving that which is peculiarly within their knowledge” but does not operate to relieve an applicant of the obligation to plead, with orthodox precision, the case that is to be advanced against a respondent: TechnologyOne Limited v Roohizadegan [2021] FCAFC 137 (Technology One) at [35]; Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (ABCC v Hall) at [100]:
If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500 at 512–513, 524; [2012] HCA 32 at [31]–[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 447–450; [2015] FCA 504 at [80]–[93] (Perry J). As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action: see Barclay (No 1) at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).
It may be accepted that this case is distinguishable from ABCC v Hall and Technology One to the extent that pecuniary penalties are not sought. Nonetheless, in the present case findings of contravention(s) are required in order for the claimed relief to be obtained. The nature of the relief sought does not, in my view, diminish or otherwise displace the basic requirements of procedural fairness that guide an assessment of the adequacy of pleadings as necessary to ensure a fair and efficient trial.
As the above dissection reveals, the Current SOCs and the Amended SOCs are lacking in structure and generalised in important respects. The Applicants have failed to clearly spell out the essential elements of their case in the manner required. The Applicants in the present case are represented by a legal practitioner. It is not for the Court to piece together an inadequate pleading or for a respondent to guess about a case advanced vaguely against it.
Having regard to the breadth of the issues with the Amended SOCs, which do not cure the issues with the Current SOCs but rather add to them, I am not satisfied it is appropriate to allow the amendments that have been proposed. I further consider that the whole of the Applicants’ Current SOCs should be struck out in their entirety but am minded to allow the Applicants the opportunity, with the benefit of these reasons, to take further advice and to re-plead the alleged contraventions of ss.340 and 343. Of the various courses available to me, I consider this the most appropriate because I am not persuaded that the current pleadings can be refashioned by amendment or excision and to do otherwise would result in an elongated and untidy course of litigation.
In reaching this conclusion, I have had regard to the relatively early stage of the proceedings as well as the delay that would be occasioned on the final resolution of the proceedings. I have also had regard to the Hospital’s submissions as to their prejudice in being put to the time and expense of preparing a further amended defence in each case and (potentially) further evidence. Having regard to the operation of s.570 of the Act, there is likely to be a real question about whether those costs are able to be recovered. That is a matter which would require separate determination upon application and hearing from the parties. Even taking into account the possibility that the associated costs may not be recovered, I am of the view that the Hospital would benefit from the orderly progress of the matters and that the interests of the administration of justice favour this conclusion. I consider it more likely that this case will proceed on an even footing if new pleadings are produced.
Other interlocutory applications
In light of the above findings, it is premature to make orders for discovery or expert evidence to be adduced. Only once the pleadings are adequately prepared should further trial directions be made.
Similarly, the subpoenas for attendance of witnesses will be set aside in their entirety. Any further requests for subpoenas are to be considered as part of future trial directions and case management on further application of the parties.
CONCLUSION
Orders will be entered in each matter giving effect to the above reasons.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 24 October 2023
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