General Manager of the Fair Work Commission v Thomson (No 2)
[2015] FCA 308
•30 March 2015
FEDERAL COURT OF AUSTRALIA
General Manager of the Fair Work Commission v Thomson (No 2)
[2015] FCA 308
Citation: General Manager of the Fair Work Commission v Thomson (No 2) [2015] FCA 308 Parties: GENERAL MANAGER OF THE FAIR WORK COMMISSION v CRAIG THOMSON File number: VID 798 of 2012 Judge: JESSUP J Date of judgment: 30 March 2015 Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 311, 312
Federal Court Rules 2011 (Cth) Div 9.6, r 29.03Date of hearing: 30 March 2015 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 23 Counsel for the Applicant: S Donaghue QC with J McKenna and J Kirkwood Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: The respondent appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 798 of 2012
BETWEEN: GENERAL MANAGER OF THE FAIR WORK COMMISSION
ApplicantAND: CRAIG THOMSON
RespondentHEALTH SERVICES UNION
Intervener
JUDGE:
JESSUP J
DATE OF ORDER:
30 MARCH 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Interlocutory Application filed by the respondent on 24 March 2015 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 798 of 2012
BETWEEN: GENERAL MANAGER OF THE FAIR WORK COMMISSION
ApplicantAND: CRAIG THOMSON
RespondentHEALTH SERVICES UNION
Intervener
JUDGE:
JESSUP J
DATE:
7 APRIL 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 24 March 2015, the respondent filed an Interlocutory Application seeking orders that the case against him be “dismissed in full”, alternatively that so much of the Application that had “previously been run in other Jurisdiction’s [sic]” be struck out.
On 30 March 2015, the first day of the trial, I heard the respondent’s submissions in support of that application, and dismissed it. These are my reasons for having done so.
The respondent relied on his own affidavit sworn on 23 March 2015. When he read that affidavit to the court, I upheld a number of the objections raised by counsel for the applicant, and I ordered that three passages in the affidavit be removed from the court file pursuant to r 29.03 of the Federal Court Rules 2011 (Cth) (“the Rules”).
The respondent, who is self-represented, advanced three broad arguments in support of his application: first, that he was not capable “in the mental health sense” of running his case, secondly, that there could be no “public good” in the proceeding going ahead because he was not in a position to pay any penalties that the court might impose, and thirdly, that there was no punishment that could possibly be imposed by the court that was greater than what he had “already gone through in the six years that this matter has been there”.
In relation to the respondent’s first argument, he said in his affidavit that he has been in the care of “various psychologists and medical professionals for many years” due to the mental illness which he is suffering. He has been in the care of Associate Professor Stephen Woods, a clinical psychologist, over the last few years. Annexed to his affidavit were letters written by A/Prof Woods on 16 March 2014, 12 December 2014 and 23 March 2015. The first two were provided in a medico-legal context, to which I shall refer. The third was provided in the context of the Interlocutory Application with which these reasons are concerned.
In his letter of 16 March 2014, A/Prof Woods thanked the respondent’s then solicitor for asking him to see the respondent “for forensic psychological assessment and preparation of a report that will be tendered in evidence when he appears before the Magistrates Court of Victoria”. The writer said that he saw the respondent on 4 March 2014. He referred to some previous medical treatment which the respondent had received, and to four visits to a psychologist in 2012. Additionally, A/Prof Woods had had access to a report by a principal psychologist at an organisation called “Steps for Success”, dated 6 March 2014 (ie two days after he had himself seen the respondent).
In his letter, A/Prof Woods supplied the following summary of the respondent’s condition:
In summary, assessment of Mr Thomson revealed that the offences for which he has been convicted are alleged to have occurred during a period when his (first) marriage was failing which, along with the work and related travel demands, manifested in recurrent depressive episodes. More recently, and whilst serving as a member of a minority government, Mr Thomson was effectively faced with “the choice” of resigning from or being suspended from Parliament and thus bringing down the then Gillard government or continue to endure a hostile Parliament environment, harassment by media, and rejection by many of his colleagues. In choosing to ensure that there was not a change of Government Mr Thomson became increasingly subject to criticism and isolation (politically and socially). The level and extent of trauma (already) suffered by Mr Thomson was, as a consequence, further aggravated thus manifesting in a Depressive Disorder. It is noted that Mr Thomson sought and obtained psychological treatment during the relevant periods.
A/Prof Woods said that the respondent had told him of a distressing incident years ago when he was driving his family car (ie his parents’ car). Due to an oncoming car veering on to the wrong side of the road, there was an accident in which his sister sustained injuries from which she died, and their parents suffered serious injuries. In this context, A/Prof Woods said:
Mr Thomson’s affect when disclosing of the circumstances of his (adopted) sister’s death, injuries sustained by their parents and his continuing sense of self-blame for not being able to “somehow” avoid the accident caused me to reach the view that he continues to suffer from a form of Posttraumatic Stress Disorder often referred to as “survivor guilt”.
A/Prof Woods described the respondent’s mental status in the following terms:
On Mental Status Examination, Mr Thomson was found to be a neatly groomed and polite individual of somewhat older physical appearance than that of his stated age. He was oriented to time, place and the purpose of the assessment.
No evidence of sensory, perceptual or cognitive impairment was detected; his estimated level of intelligence was felt to be in the high to above average range. Mr Thomson did not exhibit, and denied having ever experienced, any symptoms associated with a major mental illness. He did however disclose to continuing to be traumatised by the circumstances of his (adopted) sister’s death and in particular, the fact that he was driving the family vehicle at the time of the accident. Post trauma symptoms suffered by Mr Thomson include: active avoidance of talking about the accident, avoidance of the location where the accident occurred, feelings of immense loss and sadness, distressing memories associated with circumstances of his sister’s death, and send [sic] of personal responsibility for not being able to “somehow” avoid colliding with the oncoming vehicle.
With regard to his current mental state, Mr Thomson disclosed of experiencing a range of symptoms indicative of agitated depression. Specifically:
ŸA pervasive sense of low energy and emotional despondence. Mr Thomson disclosed to sometimes becoming overwhelmed with depression. I note with particular concern his reports of recurrent suicidal ideation;
ŸSleep disturbance, characterised by insomnia, and when able to fall asleep to being woken by nightmares. Mr Thomson reported to lying awake most of the night worrying;
ŸSignificant weight loss due to worry and chronic nausea which inhibits any wish to consume food;
ŸA constant sense of emotional and physical tension;
ŸImpaired concentration: Mr Thomson described “zoning out and having lots of blank moments”. Mr Thomson also described:-
o“sometimes feeling like I am out of my body… it’s all very surreal”;
ŸA deep sense of humiliation and low self-worth;
ŸA pervasive sense of fear and worry - particularly in relation to the welfare of his wife and children if sentenced to a custodial term;
ŸFrequently breaking down in tears and feeling out of control;
ŸA sense of social isolation.
A/Prof Woods’ diagnosis was that the respondent was suffering from residual symptoms of posttraumatic stress disorder, chronic and severe, and from major depressive disorder, without psychotic features but with episodes of dissociation and depersonalisation. He concluded with some observations about the relevance of his diagnosis to the prospect of the respondent’s incarceration.
In his letter of 12 December 2014, A/Prof Woods noted that he had referred the respondent to a consultant forensic psychiatrist, who concurred with his diagnosis of the respondent “and also the risk of further deterioration in his mental state”. The psychiatrist had put the respondent on an antidepressant medication, written to his general practitioner, and arranged a follow-up consultation. It was A/Prof Woods’ understanding that the respondent had seen the psychiatrist on four occasions. The respondent saw A/Prof Woods on two occasions subsequent to his initial consultation, the focus of the treatment being the reduction of his “active symptoms of agitated depression” and assistance in his “developing stress management skills.”
With respect to the respondent’s “current status”, A/Prof Woods said:
When seen for review on 5th December, 2014, Mr Thomson was noted to be in a highly agitated state. He reported to have found his recent Court appearance intensely confronting and as such forced him to focus on a) the matters that are the subject of current legal proceedings, b) the humiliation and distress suffered by his wife and c) the possibility that his appeal to the Court may be unsuccessful and a longer custodial sentence imposed. Mr Thomson was noted, with considerable concern, to disclose of experiencing transient suicidal ideations with a growing perception/fear that death would be a more preferred option than that of a lengthy custodial sentence. Mr Thomson further disclosed that the depressive symptoms referred to in my earlier report had returned and were of great intensity.
A/Prof Woods said that the respondent’s mental health continued to be “a matter of clinical concern”. He made observations as to the possible consequences for him of a custodial sentence.
A/Prof Woods’ letter of 23 March 2015 was written specifically in connection with the present proceeding. The respondent had requested him to provide a report for the court in support of the dismissal of the applicant’s claim against him on “mental health grounds” (A/Prof Woods’ inverted commas). He referred to his two previous reports. He said that the respondent had most recently seen him on 5 March 2015. He continued:
Notwithstanding, the successful outcome of his severity of sentence appeal, a) his continuing inability to obtain employment, b) social disgrace associated with the criminal proceedings brought against him and c) emotional trauma associated with the current matter were found to be negatively impacting on his mental health. A further major stressor impacting on Mr Thomson’s mental health is his precarious financial situation and thus need to self-represent (in the current matter).
Due to the nature of Mr Thomson’s continuing symptoms, particularly the severity of his depressive episodes and thus vulnerability to decompensate to a level whereby he dissociates, he will likely struggle to cope with the pending Court hearings. The possibility that Mr Thomson’s mental health, in response to the stress and trauma suffered, deteriorates to the extent that he is unable to participate in the proceedings must be considered.The first thing to be noted about the respondent’s suggestion that the proceeding should be dismissed, wholly or in part, on account of his mental condition is the timing of his application in that regard. The trial of this proceeding was fixed for 30 March 2015 as long ago as 10 October 2014. Notwithstanding that the respondent was then possessed of A/Prof Woods’ report of 16 March 2014, nothing was then said about mental health issues. Neither did A/Prof Woods’ report of 12 December 2014 prompt the respondent to raise those issues with the court. Then, on 17 February 2015, the respondent was represented by his solicitor at the hearing of an Interlocutory Application by the applicant, at which time the court was informed that the respondent might, because of shortage of funds, find it necessary to represent himself in the case. That indication was accompanied by no suggestion that he might not in fact be able to represent himself on account of his mental condition.
On 27 February 2015, the respondent sent an email to the court, with a copy to the applicant’s solicitors, stating that he would be representing himself and that it would be a good idea to schedule a conference in which he was involved. Because he requested the court to treat the email as confidential, I shall not set out its terms. I shall confine myself to acknowledging, favourably to the respondent, that he did there refer to medical reports regarding his “ongoing mental health”. The remainder of his email, however, implied a readiness by him to conduct his own case in court, subject only to the hearing being moved to Sydney.
On 11 March 2015, the respondent himself appeared, by telephone, when the proceeding was briefly listed for mention for two purposes, namely, that referred to in his email of 27 February 2015 and to deal with the applicant’s concerns about the respondent’s failure to comply with the timetable set for the filing of his evidence (as it happens, there never was any such evidence filed). On that occasion, the respondent applied, orally, for the hearing of the case to be transferred to Sydney, alternatively for video conferencing facilities to be used. In doing so, he represented himself both rationally and intelligently. He made no reference to the possibility of an application of the kind he now makes, and he said nothing about his mental condition, notwithstanding that, unbeknownst then to the applicant or to the court, he had consulted A/Prof Woods as recently as 5 March 2015. I mention this not to imply scepticism about the respondent’s claim to be mentally infirm, but to underline the considerations of timing already referred to.
Turning to the expert evidence upon which the respondent relies, I think I can allow myself the observation that A/Prof Woods’ most recent, and therefore most relevant, opinion was both guarded and qualified. That the respondent would be unable to participate was described as no more than a possibility and, while the view was expressed that the respondent would be likely to struggle to cope with the hearings, what stands out is the absence of any categorical professional opinion as to the medical consequences of the respondent being obliged to conduct his own defence at the trial of this proceeding, and of any specific advice given to the respondent that he should not do so. A/Prof Woods’ letter, in effect, goes no further than to make the court aware of the respondent’s circumstances, and of the background thereto.
Had a timely application been made for a relatively short adjournment, and had it been accompanied by more specific professional evidence, including evidence as how best the respondent might manage his mental health while participating in the case, the court might have been attracted to some expedient that would have been convenient to him. Had that not been viable, again depending on the content and strength of the professional evidence available to the court, it might have been possible for the respondent to be represented under Div 9.6 of the Rules. Either way, however, I would have been most reluctant to act only on a letter of the kind written by A/Prof Woods on 23 March 2015.
But the present application is not for an adjournment. Neither does it involve any proposal for a means by which the respondent might defend himself against the claims brought by the applicant. Rather, the respondent seeks what is, in effect, summary judgment in his favour in relation to all or some of the applicant’s claims. Whatever view be taken about his present condition, it could not provide the basis for an outcome of that kind.
The respondent’s second and third arguments may be dealt with more briefly. As to the second, this would never amount to a good argument for summary judgment against the applicant in a proceeding such as the present. If the applicant succeeds in some or all of the respects claimed, I shall in due course hear submissions on penalty. Whether or not penalties are imposed, there may be a basis for the making of declarations which the applicant seeks. It would be not only legally unsound, but just plain wrong, for the court now to give judgment against the applicant on the ground that the respondent is in no position to pay any penalties that the court might impose.
As to the respondent’s third argument, I appreciate that the respondent has already been through a mill of sorts in relation to alleged conduct which, if not on all fours with that in relation to which he is proceeded against here, at least has in common the circumstance that it concerned the period during which he was national secretary of the Health Services Union. However, the prosecution of the present proceeding, in the circumstances obtaining, is clearly within the contemplation of ss 311 and 312 of the Fair Work (Registered Organisations) Act 2009 (Cth). It is neither the applicant’s role to press for, nor the court’s responsibility to impose, some penal outcome which is, in the respondent’s words, greater than what he has already gone through. As I said, in due course, and depending on the outcome of the case on the merits, I shall receive submissions on penalty, at which time it will be open to the respondent to urge upon me such considerations, relating to his previous criminal proceedings and other privations, as he may consider appropriate.
It was for the reasons set out above that the respondent’s Interlocutory Application was dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 7 April 2015
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