Gardner v Australian Health Practitioner Regulation Authority
[2019] FCCA 968
•10 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARDNER v AUSTRALIAN HEALTH PRACTITIONER REGULATION AUTHORITY | [2019] FCCA 968 |
| Catchwords: PRACTICE AND PROCEDURE – Application to change venue of proceedings – balance of convenience – other matters to be considered. |
| Legislation: Fair Work Act 2009 (Cth), ss.52, 340, 342, 351, 361, Part 3-1 Federal Circuit Court Act 1999, s.52 Federal Circuit Court Rules 2001, r.8.01 |
| Cases cited: State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 |
| Applicant: | DAVID JAMES GARDNER |
| Respondent: | AUSTRALIAN HEALTH PRACTITIONER REGULATION AUTHORITY |
| File Number: | ADG 277 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 27 March 2019 |
| Date of Last Submission: | 27 March 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 10 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stanley |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondent: | Mr Manos |
| Solicitors for the Respondent: | Colin Biggers & Paisley |
ORDERS
The proceedings be transferred from the Adelaide Registry of the Federal Circuit Court of Australia to the Melbourne Registry of the Federal Circuit Court.
The costs of the transfer application be reserved to the trial judge.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 277 of 2018
| DAVID JAMES GARDNER |
Applicant
And
| AUSTRALIAN HEALTH PRACTITIONER REGULATION AUTHORITY |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise under the general protection provisions of the Fair Work Act 2009. The current controversy between the parties concerned is whether the case should continue in the Adelaide registry of the court, where it was commenced or be transferred to the court’s registry in Melbourne.
Background
In early 2014, the applicant David Gardner commenced work, as an investigator, in the Adelaide office of the Australian Health Practitioner Regulation Authority,[1] which is the respondent to the proceedings.
[1] Hereinafter referred to as AHPRA
AHPRA is a statutory authority of the Commonwealth Government, established under the Health Practitioner Regulation National Law and, in generic terms, is responsible for the regulation of health practitioners, both allopathic and alternative, within Australia.
The relevant law, which AHPRA administers, means that it oversees the activities of fifteen national boards responsible for regulating the wide variety of health professionals, who practice in this country, including investigating complaints about the standard of treatment prescribed by them.
On any view, the authority conferred on AHPRA is both wide ranging and significant going, as it does, to the health and safety of Australian residents in respect of their medical treatment. As such, it employs many staff members and operates at locations in each state of the Commonwealth.
Mr Gardner commenced his duties in Adelaide, on 17 March 2014. He received a number of promotions, initially in AHPRA’s Adelaide office and then later from September of 2016, when he was transferred, as a senior inspector, to its Sydney office.
In January 2017, Mr Gardner was offered and accepted a position as a team leader in AHPRA’s Melbourne office. In late 2017, Mr Gardner was again promoted, when he was made a level 8 manager, again at AHPRA’s Melbourne office. He remained in Melbourne until he left the employ of AHPRA.
Mr Gardner, in the latter stages of employment, was responsible for managing a large team, which was engaged in assessing complaints about registered health practitioners, which came into AHPRA’s Victorian office. He alleges that there were approximately 40-50 such notifications received each week, by AHPRA, many of which were assessed as being high risk because of the treatment concerns raised.
Mr Gardner alleges that his position was both stressful and inadequately resourced by AHPRA. He further alleges that the under resourcing of his team had the potential to put members of the public at risk.
In this context, it is Mr Gardner’s case further that he consistently raised his concerns with more senior members of staff regarding the risk, both to the staff members for whom he was responsible and the public generally arising from what he believed was a critical level of under resourcing.
In general terms, Mr Gardner characterises himself as a quasi-whistle blower, who actively raised issues regarding systematic failings arising within AHPRA both in relation to the health and safety of the investigative staff who he oversaw and the protection of members of the public from exposure to deficient medical services. Further, Mr Gardner alleges that he was targeted, by AHPRA management because he raised these concerns.
There is no controversy between the parties that Mr Gardner resigned from his employment, with AHPRA, on 9 April 2018. It is Mr Gardner’s position that he was forced to resign, from AHPRA, because of the prejudicial conduct of several of AHPRA’s managers towards him, over the course of his employment, in the Melbourne office.
Essentially, Mr Gardner asserts that the conduct of AHPRA left him with no viable alternative other than to leave its employ, in order to preserve his health, particularly in terms of his psychological equilibrium.
In general terms, Mr Gardner asserts that the conduct of AHPRA led to his constructive dismissal. As such, he alleges that he has been subject to adverse action because he exercised a workplace right to complain about the managerial decisions of AHPRA.
The legal provisions applicable to the application
Part 3-1 of the Fair Work Act is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
“Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”
The expression workplace right is defined by section 341(1) of the FWA;
(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.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
Pursuant to section 351(1) of the FWA:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
In addition to his claim that he has been subject to adverse action because of his exercise of a workplace right under section 340(1), Mr Gardner also alleges that AHPRA has contravened section 351(1) of the Act by taking adverse action, against him, whilst he has been suffering a physical and mental disability.
As a consequence of the use of the word because in sections 340 and 351 there must be a causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant, either as a consequence of a workplace right or one of the attributes listed in section 351.
Section 361 provides as follows:
“(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.”
The effect of section 361 is to place the onus of disproving the necessary causal link on the respondent. In these circumstances, an application arising under Part 3-1 of the Act involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the Act;
·Did the respondent concerned take adverse action against the applicant;
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.
In State of Victoria (Office of Public Prosecutions) v Grant White J summarised the relevant principles applicable to section 361 as follows:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[2]
At this stage of proceedings, neither Mr Gardner nor AHPRA have filed any extensive affidavits of evidence in which each has set out their respective views as to what incidence did or did not represent some form of adverse action.
However, it seems to be common ground that Mr Gardner’s case hinges on a wide variety of interactions, which he had with various members of AHPRA’s staff, particularly in its Melbourne office, over an extended period of time.
In summary, Mr Gardner’s case is not concerned with a discrete incident, involving a few witnesses, which led to a clear exemplar of adverse action, in respect of which the employer concerned must provide rebutting evidence regarding the reason for the taking of the adverse action concerned.
Rather, this is a case of a complex workplace, which seems to have become increasingly fraught with difficulties, so far as Mr Gardner was concerned. As such, there were many meeting, in the workplace, in which Mr Gardner was involved. In addition, given the reality of the modern workplace, no doubt there are long email chains in which various salient topics are discussed.
It is in these circumstances that the issue of whether the proceedings should be transferred to Melbourne arises. Mr Gardner now lives in Adelaide. He has instructed solicitors in Adelaide. He cannot be regarded as a financially well-resourced person.
On the other hand, AHPRA is a large Commonwealth instrumentality, with the backing of the Commonwealth government. Although it is trite, it is often said, in the context of civil litigation, that the financial resources of the Commonwealth are to be regarded as essentially unlimited.
In this context, Mr Gardner asserts that it is fair for the proceedings to remain in the jurisdiction most convenient to him. He contends that the Commonwealth has the facilities to conduct the litigation, without significant hardship, anywhere in Australia, including making any necessary arrangements to secure the attendance of relevant witnesses.
On the other hand, AHPRA, whilst conceding it has superior financial resources to Mr Gardner, contends that the various evidentiary issues, arising in this case, occurred in its Melbourne office and involved very many members of its staff there. As such, it contends that the balance of convenience favours the transfer of the proceedings in Melbourne.
The legal principles applicable
There is no legal impediment preventing the case taking place in any particular location within Australia. Section 52 of the Federal Circuit Court Act 1999 provides as follows:
Venue
(1) The Federal Circuit Court of Australia may sit at any place in Australia.
(2) The Federal Circuit Court of Australia or a Judge may, at any stage of a proceeding in the Federal Circuit Court of Australia, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Circuit Court of Australia or Judge imposes.
Rule 8.01 of the Federal Circuit Court Rules 2001 provides as follows:
Change of venue
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
In National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor[3] the Full Court of the Federal Court, in applying an analogous legislative and administrative regime applicable to its functions, said as follows:
“Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.”
[3] National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor [1988] 19 FCR 155
In Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd[4] Lucev FM (as His Honour then was) identified the following issues as being potentially relevant to change of venue applications.
·The residence of the parties;
·The residence of witnesses;
·Expense to the parties;
·The place where the cause of action arose; and
·The convenience of the court itself.
[4] Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495
For obvious reasons, there should be no caprice surrounding the appropriateness of the venue concerned. That is, in either applying for or resisting a change of venue, the court should not be influenced by any perception that such a transfer or absence thereof is motivated by a tactical desire to disadvantage the other person.
In this context, it is to be noted that the court can sit, and take evidence and hear witnesses anywhere in Australia. However, the location of counsel, solicitors and other advisors, particularly if those persons have actual knowledge and relevant experience of the issues arising may be relevant, as will the size and nature of any business or organisation involved.
In this case, AHPRA has elected to instruct a large national law firm, with offices in Melbourne. On the other hand, Mr Gardner has elected to instruct a small boutique employment law firm based in Adelaide. I can readily understand the motivation of each party for the particular selection.
From AHPRA’s perspective, the case has the potential to involve many of its staff and require the collation of many documents. From Mr Gardner’s point of view, his preference is to engage a small and easily accessible small firm located in his home town. Each decision has a logical and understandable rationale, which stem from the very different scale of their operations.
The submissions of the parties
Mr Manos, counsel for AHPRA, relies on an affidavit of Adam Luke Conti, who is a solicitor in the firm of his instructing solicitor. Mr Conti deposes that his client has difficulty comprehending what specifically are the incidents, which give rise to the various incidents of adverse action alleged to have been taken against Mr Gardner.
However, after having consulted with senior management, within AHPRA, he has identified thirty-one members of its personnel, who are potential witnesses in the case, particularly in the context of being decision makers, in respect of various administrative actions taken by AHPRA, which had implications for Mr Gardner. Mr Gardner has specifically named these individuals within his most recently amended statement of claim.
Of these thirty-one witnesses, twenty-eight of them are based in AHPRA’s Melbourne offices. In these circumstances, Mr Manos asserts that potentially Mr Gardner’s action will occupy several days of hearing, most of which will involve these witnesses having to come to court.
Given this state of affairs, Mr Manos asserts that issues of logistics and practicality dictate that it will be more efficient if the case occurs in Melbourne because it will be easier and less expensive for these witnesses to be marshalled, by his client, in Melbourne. In addition, the important work of AHPRA will be less affected.
In these circumstances, in his written submissions, Mr Manos submits as follows:
“The cost and inconvenience of AHPRA having to run a lengthy trial with up to 21 witnesses flying interstate is ample justification for the Court to grant the transfer. Mr Gardner will suffer some inconvenience from the transfer. However, he is the party bringing the application and can be expected to tolerate some personal disruption. Further, the alleged contraventions occurred in Melbourne (where he then resided) so his decision to move to Adelaide is a factor to be given limited weight. Finally, any nuisance caused to Mr Gardner from having the matter heard in Melbourne pales in comparison to the expense and inconvenience that will AHPRA and its employees who are not parties and have no control over the proceedings) will be made to bear. The interests of justice warrant the application being granted.”
On the other hand, Ms Stanley, counsel for Mr Gardner relies on the obvious disparity in the financial resources of the parties concerned. In this context, I accept that it will be daunting for Mr Gardner to have to conduct what must be regarded as complex litigation, at a location, far away from both his home and the office of his legal advisor. However, the David and Goliath aspect of these proceedings, in my view, is likely to endure regardless of what location is ultimately preferred.
More significantly, Ms Stanley forcefully submits that it is premature for the court to make any decision regarding transfer, which should be deferred until the pleadings have been concluded. In particular, she contends that it is probable that the various evidentiary issues, arising between the parties, can be distilled, through an exchange of pleadings and documents and, as a consequence, the evidence to be examined and the necessary witnesses required to provide it significantly reduced.
This may be so. But at this juncture, in my view, it is impossible to provide a definitive answer in this regard. I would hope that through their mutual endeavours, the parties will be able to reduce the scope of evidentiary issues arising between them. However, I cannot be sanguine that this will occur.
In my view, the case is likely to remain a difficult and complicated one, with many moving parts. In my assessment, it is currently more analogous to a 2000 piece jigsaw, rather than one with 50 or so pieces.
I am not confident that it will be possible for the parties, through any cooperative process, to reduce the various workplace incidents required to be examined, from Mr Gardner’s perspective, to establish he has been the subject of adverse action.
As I understand Mr Gardner’s case, albeit on an extremely provisional basis, he asserts that it is the cumulative actions of APHRA management which led to his constructive dismissal. Accordingly, it will be necessary for him to compile a composite case, involving many individuals.
Conclusions
The Adelaide registry has five Judges attached to it. Two of whom, including me, who exercise general federal law jurisdiction in addition to family law jurisdiction. Given the number of judicial officers in Adelaide and the number of cases pending, both in family law and general federal law, this case is not likely to be allocated a final hearing date until 2020.
The Melbourne registry has more judicial officers, including some who officiate in general federal law matters alone. However, the Melbourne registry services a significantly larger population to that of South Australia. Like this registry, it too has many calls on its resources.
Accordingly, it does not seem that the case will come on significantly sooner in either Adelaide or Melbourne. In addition, the case is likely to tax the resources of both registries to a significant degree.
Although, as I have already observed, I would hope that the issues arising between the parties could be distilled and so the length of the case reduced, such an outcome cannot be guaranteed.
As such, in my view, there remains a significant possibility that, in presenting his case, Mr Gardner will want to examine a multiplicity of interactions between him and various members of AHPRA’s staff, which occurred over a relatively lengthy period of time.
In this context, it is inevitable that there will be significant differences of views as to what occurred in these various interventions and what was the actual attitude of any relevant decision makers concerned.
Essentially, it is likely that AHPRA, through its various employees, will assert that relevant decisions were made for legitimate operational reasons, whilst, on the other hand, Mr Gardner will allege that the various decisions in question were vitiated by occult and illegal considerations.
As indicated above, Mr Gardner will want to present a composite case. Necessarily, it is likely, AHPRA will have to respond to such a case element by element and this will involve a large number of its staff.
As such, in my view, the case is likely to remain one involving very many witnesses, the vast majority of whom are located in Melbourne. In my view, this factor alone militates in favour of the proceedings being transferred to Melbourne sooner rather than later.
In my view, if the transfer is to occur, it should happen now, at an early stage of proceedings, but after the conclusion of alternative dispute resolution processes. In this context, it is to be noted that a court ordered mediation was unsuccessful.
In addition, in my view, it is highly relevant that the events of which Mr Gardner complains have no connection whatsoever with Adelaide. The only connection with this city is the fact that he commenced his employment with AHPRA in Adelaide and now resides here.
Accordingly, I have determined that the proceedings should be transferred to the Melbourne registry of the court at this time. I will reserve any issue of costs arising to the trial judge.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 10 April 2019
[2] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
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