Eckel v Ballarat Community Health Ltd
[2020] FCCA 2714
•5 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ECKEL v BALLARAT COMMUNITY HEALTH LTD | [2020] FCCA 2714 |
| Catchwords: PRACTICE & PROCEDURE – Application for leave to amend Form 2 – where amendments fall outside of the jurisdiction of the presiding court – where the amendment would be plainly futile – consideration of the interests of justice – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth). Federal Circuit Court Rules 2001 (Cth), r.7. Occupational Health and Safety Act 2004 (Vic), ss.130, 131. |
| Cases cited: SZGTE v Minister for Immigration and Multicultural Affairs [2006] FCA 443 |
| Applicant: | BRENDAN ECKEL |
| Respondent: | BALLARAT COMMUNITY HEALTH LTD |
| File Number: | MLG 2742 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 26 March 2020 |
| Date of Last Submission: | 26 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondent: | Mr Harrington |
| Solicitors for the respondent: | K & L Gates |
ORDERS
The applicant’s application for leave to amend his points of claim as contained in the applicant’s amended Form 2 filed on 7 February 2020 is dismissed.
The matter be listed for directions on 22 October 2020 at 9:30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2742 of 2018
| BRENDAN ECKEL |
Applicant
and
| BALLARAT COMMUNITY HEALTH LTD |
Respondent
REASONS FOR JUDGMENT
Background
The applicant, who is representing himself in these proceedings, filed an application on 12 September 2018.[1] A response was filed by the respondent on 21 November 2018.[2]
[1] Applicant’s application filed 20 November 2018.
[2] Respondent’s response filed on 22 November 2018.
Procedural orders were made on 10 December 2018 and the matter was referred to mediation before a Registrar.[3] Further orders were made aimed at allowing the applicant the opportunity to seek pro bono assistance.[4]
[3] Orders made by her Honour Judge Kirton on 10 December 2018.
[4] Orders made by her Honour Judge Mercuri on 7 June 2019; Orders made by her Honour Judge Mercuri on 16 October 2019.
Ultimately, the matter came before his Honour Judge Blake on 5 December 2019, at which time orders were made that:[5]
a)the applicant’s Form 2[6] and the respondent’s response[7] stand as points of claim and points of defence;
b)no party be permitted to depart from the points of claim and points of defence except with leave of the court; and
c)further trial directions were issued for the filing of affidavit material by each of the parties.
[5] Orders made by his Honour Judge Blake on 5 December 2019.
[6] Applicant’s Form 2 filed on 20 November 2018.
[7] Respondent’s response filed on 22 November 2018.
On 14 January 2020, the applicant filed an interlocutory application effectively seeking to amend his points of claim.[8] That application is opposed by the respondent.
[8] Applicant’s application in a case filed on 14 January 2020.
That matter came before me on 7 February 2020 at which time I ordered that:[9]
a)the applicant file and serve his amended points of claim by 4:00pm that day;
b)the respondent file and serve written submissions in response to the applicant’s amended points of claim within 14 days; and
c)the matter be listed for a hearing before me on 26 March 2020.
[9] Orders made by her Honour Judge Mercuri on 7 February 2020.
The following further material was subsequently filed by the parties:
a)on 7 February 2020, the applicant filed an amended initiating application[10] and supporting Form 2[11] (“amended application”);
b)on 28 February 2020, the respondent filed an outline of submissions;[12] and
c)on 6 March 2020, the applicant filed an affidavit which purports to evidence service of the applicant’s amended points of claim.[13]
[10] Applicant’s amended application filed 7 February 2020.
[11] Applicant’s amended Form 2 filed 7 February 2020.
[12] Respondent’s outline of submissions filed 28 February 2020.
[13] Affidavit of Brendan Eckel sworn 26 February 2020 and filed 6 March 2020.
By his amended application, the applicant seeks to raise alleged breaches of the Occupational Health and Safety Act 2004 (Vic) (OH&S Act) and prosecute offences under the OH&S Act.
The respondent opposed the application to amend on the basis that the applicant does not have standing to bring such proceedings and therefore it would be futile to allow the amendment.[14]
[14] Respondent’s outline of submissions filed 28 February 2020 at paragraph 6.
Original claim
The applicant’s original claim as set out in his Form 2 raised allegations that the respondent had breached the general protection provisions of the Fair Work Act 2009 (Cth) (“FW Act”) by dismissing the applicant from his employment and subjecting the applicant to other forms of adverse action for one of a number of proscribed reasons.[15]
[15] Applicant’s Form 2 filed 12 September 2018 at Part G.
The applicant also makes various allegations:[16]
[16] Applicant’s Form 2 filed 12 September 2018 at Part G.
a)of breaches by the respondent of the National Employment Standards (“NES”) and the Nurses and Midwives (Victorian Public Sector) (Single Interest Employer) Enterprise Agreement (2012-2016) (“EBA”);
b)that he has been subjected to bullying at the hands of the respondent and its employees, both past and present;
c)that he has been subjected to undue influence in relation to the making of an enterprise agreement, an individual flexibility agreement;
d)of underpayment of wages for work performed for the respondent;
e)of unlawful deductions;
f)that the respondent has made misleading representations about the applicant’s workplace rights;
g)that he has been subjected to unlawful discrimination on the basis of various prescribed attributes;
h)the respondent engaged in a pattern of bullying behaviour in breach of the EBA; and
i)the respondent failed to explore redeployment opportunities for the applicant.
The applicant also makes various claims of inappropriate links between the respondent and members of parliament, the unions and other organisations.[17]
[17] Applicant’s Form 2 filed 12 September 2018 at Part G.
Proposed amendment
By his amended application, the applicant seeks to raise various breaches of the OH&S Act.[18] I note that some of the detail set out below each of the alleged breaches could be evidence in support of the allegations made in the initial claim, in particular, in relation to the alleged adverse action as a result of having raised bullying allegations.
[18] Applicant’s amended Form 2 filed 7 February 2020 at Part G.
The hearing on 29 March 2020 was conducted by telephone. The applicant confirmed that he had received a copy of the respondent’s submission in reply.
When asked to explain why his application to amend his claim ought to be granted, the applicant said that ‘the amendments are just the improvements on what was already in the original…’[19]
[19] Transcript page 2 at lines 45 and 46.
The applicant further stated:
I’m actually being more specific, because I already had included occupational health and safety issues in the originating claim, and all I have done is been more specific what those breaches were… It’s not new information, it’s just clearer, basically.[20]
[20] Transcript page 3 at lines 1 to 8.
The respondent submits that the proposed amendments to the Form 2 do not disclose a cause of action which could properly be pursued in this jurisdiction.[21] The respondent further submits that by the proposed amendments, the applicant is effectively seeking to prosecute breaches of the OH&S Act.[22]
[21] Respondent’s outline of submissions filed 28 February 2020 at paragraph 15.
[22] Respondent’s outline of submissions filed 28 February 2020 at paragraph 14.
The respondent concedes that the court has a discretion to vary a claim under rule 7 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Rule 7.01 relevantly provides:
(1)At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2)Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
Rule 7.03 of the Rules is not relevant for present purposes.[23]
[23] It deals specifically with general federal law proceedings, such as this proceeding in circumstances where the application to amend is made after the expiry of the relevant period of limitation current at the date the proceeding was commenced.
As noted by Graham J in SZGTE v Minister for Immigration and Multicultural Affairs [2006] FCA 443 (“SZGTE”):
The ultimate consideration [in determining whether to grant leave to amend] was what was in the interests of justice. Clearly, leave to amend should not be granted to a party acting otherwise than in good faith, where the proposed amendment would be plainly futile or where injustice to the other party could not be adequately compensated.[24]
[24] SZGTE v Minister for Immigration and Multicultural Affairs [2006] FCA 443 at [34].
In these proceedings, it is submitted by the respondent that the interests of justice would not be served as the applicant does not have standing to bring the proceedings he wishes to pursue under the proposed amendment. On this basis, it is submitted the proposed amendment would be futile.[25]
[25] Respondent’s outline of submissions filed 28 February 2020 at paragraph 6.
In SZGTE, Graham J went on to say:
In doing justice, courts have recognised that the rights of both parties to the litigation must be considered… Justice is the paramount consideration and the interests of case management should not be allowed to prevail over the injustice of shutting out a party from raising an arguable case…[26]
[26] SZGTE v Minister for Immigration and Multicultural Affairs [2006] FCA 443 at [35].
In this instance, it is submitted for the respondent that under the OH&S Act, only specified individuals have standing to prosecute breaches.[27] The applicant does not, have such standing and accordingly, leave to amend ought not be granted.[28]
[27] Respondent’s outline of submissions filed 28 February 2020 at paragraph 15.
[28] Respondent’s outline of submissions filed 28 February 2020 at paragraph 15.
Section 130 of the OH&S Act provides that proceedings for an offence under that Act or the regulations made pursuant to that Act, may only be brought by the Victorian WorkCover Authority (“the Authority”) or an inspector with the written authorisation of the Authority.[29]
[29] Occupational Health and Safety Act 2004 (Vic) s 130.
Section 131 of the OH&S Act further provides that:
a)where a person considers that something has occurred which constitutes an offence against the OH&S Act or the regulations made pursuant to that Act; and
b)no prosecution has been brought in relation to that occurrence within 6 months,
the person may request in writing that the Authority bring a prosecution.[30]
[30] Occupational Health and Safety Act 2004 (Vic) s 131(1).
Except in limited circumstances, the Authority then must investigate the matter and advise the person whether or not it intends to bring a prosecution and if not, give reasons.[31]
[31] Occupational Health and Safety Act 2004 (Vic) s 131(2).
If the Authority advises the person that no prosecution will be brought, or if no prosecution has been brought within 9 months, the Authority must refer the matter to the Director of Public Prosecutions (“DPP”) if the person so requests.[32] The DPP is required to consider whether a prosecution ought to be brought.[33]
[32] Occupational Health and Safety Act 2004 (Vic) s 131(3).
[33] Occupational Health and Safety Act 2004 (Vic) s 131(4).
Ultimately, it is submitted that there is no power for an individual per se to prosecute an alleged offence under the OH&S Act, as the applicant is proposing to do in this case. Having regard to the provisions of the OH&S Act, I accept this submission.
Therefore, it would be futile to allow the amendment to proceed.
Conclusion
For these reasons, I dismiss the applicant’s application for leave to amend his application.
The points of claim set out in his initial Form 2 remain the points of claim pursuant to the orders of Judge Blake.[34]
[34] Orders made by his Honour Judge Blake on 5 December 2019.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 5 October 2020
1
4