Crowden v Commissioner for Public Employment

[2019] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROWDEN v COMMISSIONER FOR PUBLIC EMPLOYMENT [2019] FCCA 1398

Catchwords:
PRACTICE AND PROCEDURE – Pleading generally – application to strike out claim and statement of claim.

Legislation:

Fair Work Act 2009 (Cth), ss.341(1)(b), 342(1), 343, 343(1)

Federal Circuit Court Rules 2001, rr.7.01, 7.03

Cases cited:

Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431

Jones v Queensland Tertiary Admissions Centre Limited (No.2) (2010) 186 FCR 22

Applicant: DAVID ROHAN CROWDEN

Respondent: COMMISSIONER FOR PUBLIC EMPLOYMENT

File Number: BRG 1089 of 2018

Judgment of: Judge Jarrett

Hearing date: 25 March 2019

Date of Last Submission: 25 March 2019

Delivered at: Brisbane

Delivered on: 26 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ward Keller Lawyers

ORDERS

1. The applicant must file and serve an application for leave to amend his Form 2 in such way as he might be advised.

2. The application for leave provided for in order 1 hereof be listed to 10 June, 2019 at 9:30am for hearing.

3. The costs of today are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1089 of 2018

DAVID ROHAN CROWDEN

Applicant

And

COMMISSIONER FOR PUBLIC EMPLOYMENT

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case by the respondent, the Commissioner for Public Employment, to strike out certain parts of a statement of claim or points of claim filed by the applicant on 23 October, 2018 and to strike out certain parts of an amended statement or points of claim dated 5 November, 2018.  The respondent seeks some alternative relief as well.

2. The proceedings were commenced on 23 October, 2018 by the applicant, using the form of proceedings prescribed for an application alleging dismissal from employment in breach of a general protection.  It is apparent from the document that accompanied the originating application, the form 2 – a form also prescribed by the rules of this Court – that the applicant did not allege that the adverse action taken by his employer and upon which his cause of action is founded involved termination of his employment, and so the respondent argues that the application is incompetent.

3. The form 2 that was filed on 23 October, 2018 and the amended form 2 that was filed on 6 November, 2018 both allege termination of the applicant’s employment by the respondent.  The allegation of termination appears in the prescribed part of the form in that part dealing with particulars or details of employment: see part B.  So there is an allegation of dismissal, in a sense.  Attached to each of the documents is also a letter from the respondent or on behalf of the respondent to the applicant which, effectively, terminates his employment. 

4. So there can be no doubt, and it was not argued that it was in contest that the applicant’s employment was terminated by the respondent.  That he does not seek relief in respect of the termination, as set out in the points of claim that form part of the form 2, is not to the point, because as part of the relief that he seeks in those documents, he asks for reinstatement.  To the extent that it is argued that the originating application is incompetent, I am against the respondent.

5. There have been three attempts by the applicant to plead his case, but first I need to make some general observations about the procedure that has been adopted in this case.  The filing of an originating application and an accompanying form 2 is a procedure which is permitted by the rules of this Court.  A form 2 is not a statement of claim.  A form 2 is one of the forms prescribed for use in these types of proceedings by the Federal Circuit Court Rules2001.

6. In this case the applicant has appended to his form 2, in addition to the documents that the rules require him to append to it, a statement of his case.  It does not matter, I think, whether it is called points of claim or a statement of claim or anything else.  It is intended, it seems to me, to be a statement of his case, but not necessarily a statement of his case in conformity with the strict rules of pleading.  It is not a document to which, at least in my view, the pleading rules set out in the Federal Court Rules2011 (which necessarily apply to pleadings in this Court) applies.

7. The second of the documents, the second form 2 that the applicant filed on 6 November, 2018 purports to amend the first one, and a question arises as to whether the applicant can simply file an amended document or whether he needs the Court’s permission to do so. Rule 7.01 of the Federal Circuit Court Rules 2001 provides that the Court or a registrar may allow or direct a party to amend a document, other than an affidavit, in any way and on certain conditions, and it may grant that leave at any stage of the proceeding. The Court is given the power to grant such leave, notwithstanding that the effect of the amendment might be to permit the applicant to include a fresh cause of action, or permit him to include a fresh cause of action which arose after the proceeding started or, in respect of which, a limitation period has expired: see r.7.03 of the Federal Circuit Court Rules.

8. In the course of argument, I wondered aloud really, whether, and notwithstanding r.7.01, an applicant needed leave of the Court to amend at all. But on reflection, and having regard to some of the authorities and the approach taken in them, see, for example, Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431, the better view is that an applicant has no power to amend their claim documents without the leave of the Court.

9. So to the extent that the applicant has filed an amended form 2 on 6 November last year, and then more recently has filed a second attempt at an amended document on 17 March this year, those documents have been filed without leave, and there is an irregularity in attending to their filing.  The respondent’s application deals with the first two form 2s, but it does not deal with the third, because it was only recently served upon the respondent. 

10. To the extent that the applicant seeks to rely on the third amended document, I will call it a statement of claim, he has no leave at the moment to rely on that document.  It is in a far more extensive form than the previous two iterations of his case.  It introduces a range of material not previously the subject of claims by him, and contains a number of very serious allegations, allegations which, if proved, would lead to the grant of relief that he seeks.  But he does not yet have leave to pursue that third amended statement of claim, and there may be opposition to it, not the least of which might arise out of the Fair Work Act2009 itself and the way in which proceedings in this Court can be instituted.

11. So, to the extent that the applicant has filed the third amended statement of claim and wishes to persist with it, then I direct that he must file and serve an application for leave to amend his form 2 in such way as he might be advised, and for that application to be listed before me for determination on a date that I will give shortly.  None of that, of course, deals with the respondent’s applications, but it is a matter that needs attention for the purposes of tidying the record.

12. The second amended claim form 2 suffers from the same difficulty as the third one.  No leave was granted for the filing of it, and so, in a sense, it is not available to the applicant to be relied upon, but the respondent has dealt with it, and so shall I.  In his first form 2 the applicant pleads that he was employed by the respondent as a teacher at the Tennant Creek High School.  He was employed as a music teacher and the head of music at that school.  He pleads that in November, 2017 he told the respondent – he does not say who it was that he told, but that he told the respondent – that he was going to make what is described as a return-to-work claim or a worker’s compensation claim, as it was described in submissions, that he was suffering from various ailments, and that those ailments were caused by the respondent.  He pleads that he, in fact, made that claim, and he alleged that he sustained an injury at the hands of the respondent in particular, by reason of bullying.

13. He says that soon thereafter the respondent notified the Teachers’ Registration Board on 13 November, 2017 that he had failed to comply with certain policies established by the respondent, and that he was to be the subject of whatever processes were initiated by complaint or information to the Teachers’ Registration Board.  He says in his pleading that he was given no notice by the respondent of its intention to refer him to the Teachers’ Registration Board.

14. He alleges that by making the return-to-work claim, he was exercising a workplace right, that the respondent took adverse action against him by notifying the Teachers’ Registration Board about him, and that it took that action because he had made his return-to-work claim.  He says that caused injury to his employment.  As I have already indicated, he did not say that his employment was terminated because of that.

15. To that pleading the respondent says the applicant cannot succeed, and that it ought to be struck out.  That is because, according to the evidence upon which the respondent relies on this application, the making of the return-to-work claim happened after the respondent notified the Teachers’ Registration Board about the applicant.  That is to say, there could be no cause and effect, because the causal event occurred chronologically after the event which the applicant says was caused by it.

16. In addition to that argument, the respondent says that the notification to the Teachers’ Registration Board itself cannot constitute adverse action for the purposes of the Fair Work Act, and a number of authorities are relied upon for that proposition. A great many of them predate the Fair Work Act. Moreover, the respondent says that the applicant has not completed the pleading of his case because he has not pleaded that there was a prejudicial alteration of position or discrimination by reason of what he alleges to be adverse action.

17. A few observations are necessary.  First, the evidence establishes that chronologically the applicant’s return-to-work claim was made after the respondent’s notification to the Teachers’ Registration Board.  The latter notification occurred on 13 November, 2017, and the return‑to‑work claim was made on 6 December, 2017.  However, by paragraph 5 of his statement of claim, form 2, the applicant alleges that he told the respondent that he was going to make a claim.  That is to say, he was proposing to make a claim.

18. The respondent accepts for the purposes of this application that the filing of a workers’ compensation claim constitutes an exercise of a workplace right. It must therefore also accept, one would think, that proposing to make such a claim is proposing to exercise a workplace right, something which is also protected by the Fair Work Act.

19. So to the extent that the applicant relies upon the making of the claim, his claim cannot succeed, and that paragraph, paragraph 6 of the first claim, ought be struck out.  But paragraph 5 can remain, and it, coupled with the allegation that the respondent took action by notifying the Teachers’ Registration Board about him as a consequence of him notifying his proposal to make that claim, can remain.

20. The respondent argues that the notification of the applicant by the respondent to the Teachers’ Registration Board cannot be adverse action, but in my view, that proposition is incorrect.  It is akin to the institution of or the threat to institute disciplinary proceedings against an employee, and, depending upon the circumstances in which that occurs, that may or may not be adverse action.  There is a discussion about this very point in the judgment of Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No.2) (2010) 186 FCR 22, commencing at paragraph 60 and onwards. The more important paragraphs appear from paragraph 72.

21. So having regard to the authorities discussed by Collier J in QTAC, it is arguable at the very least that the notification of the applicant to the Teachers’ Registration Board by the respondent is adverse action, because it has the very real potential, one might think, to affect him in his employment.  Presumably – and this was not the subject of argument before me, but presumably – if one is not registered as a teacher, one cannot work as a teacher, and the Board probably has power to impose conditions on registration.  I might be wrong about these things, but at this interlocutory stage, it seems to me an appropriate assumption to make.

22. So insofar as the first statement of claim is concerned, the respondent asks that paragraph 7 be struck out on the basis that the notification occurred before the making of the return-to-work claim, but for the reasons that I have attempted to explain, paragraph 7 can remain because the applicant notified his intention to make a return-to-work claim, on his pleading, before notification in fact occurred.  In those circumstances, the balance of the relief sought by the respondent in its application in a case cannot succeed.

23. The second pleading expands the claims made by the applicant. There are some minor amendments, but then, in paragraphs 5 and 6, he makes further allegations which are designed to demonstrate that the respondent has taken adverse action against him. The complaints by the respondent firstly relate to paragraphs 5 and 11(e). Paragraph 5 talks about some direction the applicant was given on 7 August, 2017 and his response to it. Paragraph 6 of the statement of claim alleges that he asked for a period of leave, but because of his response to the direction pleaded in paragraph 5, his leave was not approved, and he was told that it would not be approved. He then repeats his earlier pleading and, in paragraph 11(a), pleads that by reason of paragraphs 5 and 8, he exercised a workplace right within the meaning of s.341(1)(b) of the Fair Work Act.

24. Paragraph 5 does not allege the exercise of any workplace right by the applicant.  As I have indicated, it alleges that he was given a direction – see paragraph 5(a) and 5(b) – and that he complied with the direction – see paragraph 5(c).  It is not suggested that the directions given to him by his employer were unlawful.  He was, therefore, obliged to comply with them.  He was not exercising a workplace right.  The complaint about this aspect of this pleading is well made.  Paragraph 8 alleges that in November, 2017 the applicant filed the return-to-work claim that I have already spoken of.  That was plainly the exercise of a workplace right.

25. The respondent complains, secondly, in respect of the second statement of claim, that paragraphs 5, 7 and 11(b) should be struck out.  11(b) pleads, in the alternative to 11(a), that by reason of the matters set out in paragraphs 5 and 7, the applicant exercised a workplace right.  For the reasons I have just given, that plea cannot succeed because paragraph 5 does not plead that he exercised a workplace right.  Paragraph 7 talks about the applicant informing the respondent about his return-to-work claim.  That is not the exercise of a workplace right, but, as I have earlier indicated, that is a proposal by him to exercise a workplace right.  Paragraph 11(b) of his second amended form 2 does not plead the claim correctly, and so 11(b) ought to be struck out in its entirety if the applicant otherwise had leave to rely on it.

26. Paragraph 11(c) pleads that by reason of the matters or “on the premises of” paragraphs 5 and 8, the respondent took adverse action against the applicant.  The comments I made earlier about paragraph 5 stand.  To the extent that the respondent directed the applicant to do something, there is no plea that the respondent’s direction was unlawful or that it was not otherwise entitled to give him the direction about which he now complains.  Insofar as the plea in paragraph 8 is concerned, paragraph 8 pleads no action by the respondent at all, but, rather, it pleads the applicant doing something.  In those circumstances, what is pleaded in paragraph 11(c) makes no sense whatsoever.  It ought be struck out if the applicant was otherwise entitled to rely on it.

27. The respondent makes complaint about paragraphs 6, 9 and 11(d).  Paragraph 6 pleads, as I have earlier indicated, the request for leave and its refusal.  Paragraph 9 pleads the notification given by the respondent to the Teachers’ Registration Board about the applicant.  Paragraph 11(d) pleads that by reason of paragraphs 6 and 9, the respondent’s actions injured the applicant’s employment.

28. The respondent argues that refusing a request for leave or making a notification to the Board does not constitute adverse action, as defined by s.342(1) of the Act. I disagree. Depending upon the circumstances established by the evidence, it may be that the refusal of a request for leave which, in all of the circumstances, an applicant is entitled to have granted, does affect that employee in his or her employment, and, as I have earlier indicated, the authorities tend to indicate that the making of a complaint or a notification such as that made in this case may well be adverse action for the purposes of the Act. Paragraphs 6, 9 and 11(d) could remain, if the applicant otherwise had leave to rely on the document.

29. Paragraphs 8 and 10 are objected to on the basis that they are unnecessary.  To the extent that paragraph 8 pleads the making of the return-to-work claim and the applicant relies upon that as establishing that the respondent took action against him because he made that claim, for the reasons I have already explained, his claim cannot succeed.  It is irrelevant and superfluous to the proceeding, and it ought be struck out.  Paragraph 10, similarly, ought to be struck out.  It serves no useful purpose.

30. The respondent then generally argues that paragraph 14 ought to be struck out because it does not plead a relevant workplace right. Paragraph 14 needs to be read with paragraph 13. Paragraphs 13 and 14 together introduce a new cause of action into the application, one for coercion, and the applicant alleges that officers of the respondent coerced him or put pressure on him with the intention to coerce him to resign his position. The relevant plea is in paragraph 14. He says that the respondent threatened to take action against the applicant by “blacklisting him from future employment and refusing to address his bullying complaints”. He alleges that there was an intention to coerce the applicant into a voluntary resignation and that by reason of those two matters, the respondent contravened s.343(1) of the Fair Work Act.

31. Section 343 of the Fair Work Act applies in circumstances where the coercive behaviour is directed towards having an employee or the person the subject of the intended coercion to exercise or not exercise a workplace right. I accept the respondent’s argument that as the matter is presently pleaded, the applicant does not identify a workplace right that he was required to exercise or not exercise by reason of the coercive behaviour. If the applicant was able to rely upon the second form 2, paragraphs 13 and 14 would be struck out.

32. The effect of those rulings would not be to rob the second amended statement of claim of any efficacy.  It would still plead a cause of action upon which the applicant might succeed if he was able to produce evidence to support his claims.  But he does not have leave to rely on that document.  It is the first form 2 that is presently the live document, to use that term, and I have indicated the way in which that document ought to be dealt with in light of the respondent’s application.  I rule accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  28 May 2019