Davies v Ambulance Victoria
[2025] FedCFamC2G 111
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davies v Ambulance Victoria [2025] FedCFamC2G 111
File number: MLG 1481 of 2024 Judgment of: JUDGE CHAMPION Date of judgment: 6 February 2025 Catchwords: FAIR WORK – Application to strike out Statement of Claim – Statement of Claim does not comply with the Rules and the fundamental principles of pleadings such that the Respondent knows the case it has to meet – Statement of Claim struck out – Opportunity for the Applicant to replead Legislation: Fair Work Act 2009 (Cth) ss. 322, 340, 343, 344, 345, 351, 544
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r. 1.06
Federal Court Rules 2011 r. 16.21
Cases cited: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 247; [2018] FCAFC 83
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Ermel v Duluzgroup (Aus) Pty Ltd. (No 2) [2015] FCA 17
Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27
Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206
Hamod v New South Wales [2011] NSWCA 375
Lamont v University of Queensland [2020] FCA 720
Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submissions: 24 January 2025 Date of hearing: 24 January 2025 Place: Melbourne Applicant: In person Counsel for the Respondent: Mr A Denton Solicitor for the Respondent: Minter Ellison ORDERS
MLG 1481 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TERRY-ANN DAVIES
Applicant
AND: AMBULANCE VICTORIA
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The statement of claim is struck out.
2.By 4.00 pm on 6 May 2025, the Applicant file and serve any amended statement of claim.
3.The matter is listed for directions at 9:30 AM on 13 June 2025.
4.The costs of the interlocutory application are reserved.
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 CHAMPION:
THE APPLICATION
Ambulance Victoria has brought an application that Ms Davies’ Statement of Claim “be struck out in its entirety”. Ambulance Victoria relies upon two affidavits of Mr Joshua Anaf, lawyer, made 2 September 2024 and 5 November 2024 in support of its application. Ms Davies represents herself in the litigation. Ms Davies relies on an affidavit she made on 22 January 2025.
I intend to strike out Ms Davies’ statement of claim in its entirety. My reasons follow.
MS DAVIES’ EMPLOYMENT
From approximately 2003 until 2024 Ms Davies was a paramedic employed by Ambulance Victoria.
In about February 2024 Ambulance Victoria dismissed Ms Davies from her employment.
HER INITIATING APPLICATION (FORM 2)
On 27 May 2024, Ms Davies commenced this proceeding. Ms Davies alleges, amongst other things, that Ambulance Victoria dismissed her in contravention of the general protection provisions of the Fair Work Act 2009 (Cth) (FW Act). Ms Davies makes numerous other allegations of adverse actions which occurred during her employment with Ambulance Victoria. In her application she says that she relies upon ss. 340, 322, 343, 344, 345 and 351 of the FW Act (Form 2, para. [67]). She seeks relief in excess of $5 million.
IT IS APPROPRIATE THAT THIS MATTER PROCEED BY WAY OF FORMAL PLEADINGS
The requirements of formal pleadings can create challenges for self-represented litigants, who do not have a familiarity with formal court processes. Wheelahan J remarked in Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike out Application) [2024] FCA 1206 at [5] of the self-represented applicant in that case that “she should not be placed at a disadvantage in terms of the courts practice and procedure because she is self-represented”. Ms Davies should be afforded a reasonable opportunity to put her case. It is, however, the court’s duty to ensure a fair trial for all parties (see e.g., Hamod v New South Wales [2011] NSWCA 375,[309]–[310]).
The Court’s “overarching purpose of the civil practice and procedure provisions” set out in s.190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which includes “to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible” means that sometimes it is appropriate to dispense with pleadings in this Court as a matter of case management.
In recognition of that principle of case management, on 2 July 2024 the court made orders that orders that the parties prepare a joint list of issues, which sought to dispense with the need for formal pleadings in this matter.
On 5 August 2024, Ms Davies notified Ambulance Victoria’s lawyers that she did not think the “joint list process is suitable or safe for me and this matter” and requested that the matter proceeding by way of pleadings.
THE ORDERS FOR A STATEMENT OF CLAIM
Following Ms Davies’ own correspondence expressing a preference for a formal statement of claim, on 4 September 2024 the court duly made orders for Ms Davies to file and serve a statement of claim.
In circumstances in which Ms Davies seeks a remedy in excess of $5,000,000, it was her own expressed preference to proceed by way of a formal pleading, her claims are wide-ranging and she makes very serious allegations including “potential perjury and perverting the course of justice, negligence, serious misconduct and potential corruption” it is appropriate that the matter proceed by way of formal pleadings. A corollary is that Ms Davies must identify her claim with precision so that Ambulance Victoria can know the case it has to meet.
THE STATEMENT OF CLAIM
On 17 September 2024 Ms Davies filed and served a statement of claim (First SOC). Lawyers for Ambulance Victoria duly notified her that her First SOC did not comply with the rules.
Having received that correspondence, Ms Davies repleaded.
The current application concerns Ms Davies second statement of claim (Second SOC) dated 17 October 2024.
RULES
Under r. 1.06(1), the practice and procedure of this court in general federal law proceedings is governed principally by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). Under r. 1.06(2), in particular cases, if the rules are insufficient the court may apply the Federal Court Rules. Rule 1.06(3) sets out that the Federal Court rules set out in Schedule 1 apply.
Relevantly, r. 16.21 of the Federal Court Rules 2011 (FCA Rules) (Rules, Schedule 1, item 14). Rules 16.21(c), (d) and (e) of the FCA Rules set out that a pleading may be struck out on the ground that it is “evasive or ambiguous”, “is likely to cause prejudice, embarrassment or delay in the proceeding” or “fails to disclose a reasonable cause of action… appropriate to the nature of the pleading”.
PRINCIPLES OF PLEADING
Ms Davies’ pleading does not comply with the fundamental principles of pleading. Importantly it does not meet “one of the main purposes of pleadings … to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case” Australian Building and Construction Commissioner v Hall (2018) 261 FCR 247; [2018] FCAFC 83 at [49]. In addition, it does not enable the court to know what issues are to be determined (Gunawardena, [8]).
The importance of compliance with these principles has particular force in a civil suit for the recovery of a pecuniary penalty which is a proceeding of a penal nature (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, [63]).
THE SECOND SOC
Ms Davies’ Statement of Claim is 171 pages and 745 paragraphs long. It takes a narrative form. In Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 Barker J said of the pleading in that case at [80]:
the pleading overall suffers fatally from narrative, prolixity, irrelevancies and in this sense is legally “embarrassing” in that it is not easy to draft a pleading in defence.
In Ermel v Duluzgroup (Aus) Pty Ltd. (No 2) [2015] FCA 17 Bromberg J observed at [48]:
A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome
The observations in Fuller and in Ermel apply with equal force to the Second SOC. There is excessive background, history and narrative material to which Ambulance Victoria cannot respond. The pleading has the character of asking the court to engage in a broad inquiry as to the rights and wrongs of events in Ms Davies’ employment at Ambulance Victoria. Insufficient work has been done to identify only the material facts and the links between those material facts and alleged breaches of the FW Act.
As to an absence of sufficient clarity in the pleading, I accept Ambulance Victoria’s illustrative example as to the problems with the Second SOC. At [710] of the second SOC Ms Davies pleads:
710. Dismissal was for a prohibited reason
a. The reasons for dismissal are prohibited reasons as shown in paragraphs [613-624, 577-611]
Following the cross-reference back to paras. [613-624] para. 617 refers to request for information about her entitlements cross-referenced to paras. “[25,26,32-42,305,321,323,331,380-385, 400,417]”. Paragraph 619 of the Second SOC is as follows:
619.Dismissal because Miss Davies made complaints she was entitled to, and had a responsibility to make complaints about safety, discrimination and victimisation, including integrity issues and safe management of Miss Davies and complaints as shown in paragraphs [safety 44,48,112,113,137,139,143,254,255, 266,299,359,363,364,366, 370,371,375,378,386,387,400,406,481]; [complaints 83-89.99- 108,111-116,137]; [complaint management 118-120,121- 124,139-144,146-154,164-172] [request external investigation 140,162,171,271,446]; [discrimination [62,72,83, 88,89,11,191,206,225,242,-245,266,267,317,430,432-441,499] [s351 83[victimisation 156-162, 254-257,259,260-267,330] and complaints in general throughout this document.
In Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25 Flick J said at [87]:
Each of the respondents is entitled to a pleading in which the case he has to meet is clearly and precisely outlined by reference to material facts only, is not obscured by extraneous evidentiary matters, and does not require an atlas to expose it.
The Second SOC is excessively long, material facts are obscured by extraneous matters and the cross-references make it impossible to follow. The content and structure of the Second SOC is likely to cause delay in the proceeding. The Second SOC does not disclose, but obscures, any cause of action.
There was also force in another criticism of Ambulance Victoria of the Second SOC. Ms Davies, as I have noted, relies upon “adverse actions” during the currency of her employment. In Lamont v University of Queensland [2020] FCA 720 Rangiah J noted at[72]
in the context of s 342(1) [pf the FW Act] , not all harm, damage, hurt or impairment to an employee’s feelings can necessarily be regarded as an injury.
…
when determining whether an injury has occurred, it is necessary to take an objective view: the employee’s subjective view alone is insufficient to make out an injury.
Paragraphs [269 ]–[271] are illustrative of a problem with the structure of the second SOC:
269.Ms Devereux’s letter of 26 July 2017 misrepresents events, her conflict of interest and request for another complaint manager.
270.Reliance on respondent’s accounts without reference to Miss Davies.
271.Request for an external investigation.
272. Miss Davies felt less valued, unsafe, uncertain and felt distress and fear for her future career, job and finances and the wellbeing of herself and her family.
To the extent that Ms Davies alleges adverse action, these paragraphs of the second SOC do not set out the objective material facts of the “adverse action” she alleges Ambulance Victoria took to injure her in her employment. They focus only on her subjective feelings. These paragraphs fail to disclose a cause of action.
NEXT STEPS
Read as a whole, the Second SOC is not a document which can be made compliant with the rules of pleading by excising some paragraphs and moving ahead with others. Ms Davies will need to start again.
The striking out of a pleading is a different matter from the additional step of the dismissal of Ms Davies’ case. Ambulance Victoria accepted that Ms Davies ought to be given an opportunity to replead her statement of claim. I will make orders that permit her 90 days to do so.
In approaching that task, I note that Ms Davies has had the benefit of communication with Ambulance Victoria (in a letter dated 26 September 2024) in which she has been accurately informed that her SOC:
(a)is not merely narrative of her case;
(b)must contain a very clear articulation of the breaches the law that she claims and only those material facts which substantiate those alleged breaches the law;
(c)must identify, with particularity, the relationship between the alleged breaches of the FW Act and the material facts; and
(d)should identify the dates and communications on which she relies in her claim.
The claims Ms Davies pleads is a matter for her. In Sabapathy, Flick J said of the applicant in that case that the applicant should “exercise judgment about whether all potential action should be pleaded. Not every reasonable cause of action is worth pursuing.”
Time limits
I also note Ms Davies’ narrative ranges back significantly more than 6 years over the history of her employment. In any amended SOC, I draw Ms Davies’ attention to s. 544 of the FW Act which provides:
A person may apply for an order under this Division in relation to a contravention of [a civil remedy provision] only if the application is made within 6 years after the day on which the contravention occurred
Opportunity to replead
After Ms Davies has an opportunity to replead, I will relist the matter for a case management hearing.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 6 February 2025
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