Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 2)
[2025] FedCFamC2G 162
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Harrison v Commonwealth of Australia (as represented by the Department of Defence) (No 2) [2025] FedCFamC2G 162
File number(s): CAG 13 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 12 February 2025 Catchwords: PRACTICE & PROCEDURE – Late application to amend statement of claim – relevant considerations. Legislation: Fair Work Act 2009 (Cth)
Australian Public Service Commissioner’s Directions 2022 s 60
Cases cited: Harrison v Commonwealth of Australia (as represented by the Department of Defence) [2025] FedCFamC2G 161
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 11 February 2025 Place: Canberra Applicant: The applicant appeared in person by telephone Counsel for the Respondent: Ms P Bindon Solicitor for the Respondent: Mr H Chang (Minter Ellison) ORDERS
CAG 13 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RACHEL ANNE HARRISON
Applicant
AND: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF DEFENCE)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed 7 February 2025 be dismissed.
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 CAMERON
INTRODUCTION
This matter concerns the termination by the Respondent (Department) of its employment of the applicant (Ms Harrison) in November 2023 and alleged antecedent contraventions by the Department of the Fair Work Act 2009 (Cth) (FW Act). The proceeding was commenced by an application filed on 15 April 2024 and supported by a statement of claim filed on 7 May 2024. At that time Ms Harrison was represented by a firm of solicitors with significant experience in employment law matters. Those solicitors ceased to act in August 2024. Since then, Ms Harrison has been unrepresented. On 10 October 2024 the matter was set down for a three-day hearing commencing yesterday, Tuesday 11 February 2025. On Friday 7 February 2025 Ms Harrison filed an application in a proceeding seeking leave to amend her statement of claim. That argument was heard yesterday, following which I ruled that the application to amend be refused with reasons to follow. These are those reasons.
BACKGROUND
Prior to the argument over the proposed amendments, Ms Harrison had applied for an 8-week adjournment of the trial. That application was refused and these reasons should be read with the reasons given for that ruling: Harrison v Commonwealth of Australia (as represented by the Department of Defence) [2025] FedCFamC2G 161 (Adjournment Judgment).
The statement of claim alleged that the Department took adverse action against Ms Harrison for the following proscribed reasons, as summarised in the Department’s written outline of opening submissions:
(a) by issuing a 10-week probationary report recommending termination of her employment for failure to meet the expectations of her role (which she refers to as the “First Adverse Action”) because she made 11 complaints or inquiries which were the exercise of her workplace rights in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act),
(b)by terminating her employment (which she refers to as the “Dismissal Adverse Action”)
i. because she made 24 complaints or inquiries (including the 11 referred to above) which were the exercise of her workplace rights, in contravention of s 340;
ii. because of her disability, in contravention of s 351; and
iii. because she was temporarily absent from work because of illness or injury, in contravention of s352.
The proposed amended statement of claim contained numerous potential additions and alterations to the pleading which comprised, as summarised in the Department’s written submissions on the application to amend:
a Numerous changes to the Applicant’s general protections claims including:
iExpansion of existing alleged workplace rights (eg new [10], new [20(e)], new [22]), and deletion and substitution of existing alleged workplace rights (eg new [16], deleted [30] and new (ix) relating to 27 October).
iiExpansion of existing alleged adverse action (eg new [18(d)(i), new [18(f)], new (xiv) relating to dismissal) and addition of new adverse action (eg new [23(c)]).
bAddition of what appears to be several new causes of action, potentially in judicial review (although it remains unclear), including:
iClaim in relation to the referral to the Directorate of Conduct and Performance and delegate powers (new [25], and new [51] running for several pages, wrongly inserted under “loss and damage”).
iiClaim in relation to fact-finding investigation conducted after the termination of the Applicant’s employment in 2024 (new [35] and various extensive paragraphs wrongly inserted under “loss and damage”).
iiiClaim in relation to alleged privacy breaches arising from the fact-finding investigation in 2024 (new [35]).
ivClaim in relation to referral to the National Anti-Corruption Commission in 2025 (new [36]).
vClaim in relation to contravention of the Work Health and Safety Act 2011 (sought in the relief).
cAdditional allegations the status of which is unclear, including as to whether they are alleged to be additional exercises of workplace rights, additional forms of adverse, new causes of action, or otherwise (eg new [18], new [24], new (xv) relating to further offers of employment and new paragraphs relating to AFP Communications Line).
CONSIDERATION
As noted in the Adjournment Judgment, principles relevant to this application emerge from the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Those principles were summarised in the Adjournment Judgment and do not need to be repeated in these reasons. Further, there is generally no point in allowing an amendment that lacks reasonable prospects of success or an amendment that would be embarrassing.
At the outset it is to be noted that all the affidavit filed in support of the present interlocutory application said by way of explanation for the lateness of the application to amend was that Ms Harrison only became aware in late December 2024 of supposed irregularities in the performance review and management process that resulted in her dismissal. However, the amendments go far beyond such matters and seek to plead numerous issues that could have been included in the statement of claim as originally filed by Ms Harrison’s solicitors but were not. No explanation for the late prosecution of those matters has been advanced. To the extent that Ms Harrison relies in this connection on her inability through lack of funds to retain solicitors or counsel and believes that she has recently been diagnosed with autism spectrum disorder, I refer again to the Adjournment Judgment.
The issues that were the subject of the explanation for delay raise questions of administrative law but the pleading of those supposed issues generally does not identify why the deficiencies alleged could lead to the termination decision having been beyond power, as alleged. That is to say, they do not disclose reasonable causes of action.
The first of only two ultra vires allegations that, on its face, may have manifested a reasonable cause of action was the one that the decision-maker, Ms Dunsby, had not been delegated the power to dismiss Ms Harrison. However, Ms Harrison pointed to no evidence that she would adduce to substantiate that allegation whereas Ms Dunsby’s letters to Ms Harrison in 2023 stated that she was acting as the delegate of the Secretary of the Department and she deposed to the fact in her affidavit affirmed 5 February 2025. I am not persuaded that that allegation has reasonable prospects of success. Ms Harrison also alleged that she had been dismissed in circumstances where s.60 of the Australian Public Service Commissioner’s Directions 2022 was not observed, but the evidence available to the Court contradicts that. Section 60 states:
60 Employee must be informed before a sanction is imposed
If a determination is made that an APS employee has breached the Code of Conduct, a sanction may not be imposed unless reasonable steps have been taken to:
(a) inform the APS employee of:
(i) the determination; and
(ii) the sanction or sanctions that are under consideration; and
(iii) the factors that are under consideration in determining any sanction to be imposed; and
(b) give the APS employee a reasonable opportunity to make a statement in relation to sanctions under consideration.
It is apparent that that provision was satisfied by Ms Dunsby’s show cause or “preliminary view” letter to Ms Harrison dated 23 October 2023, which Ms Harrison deposed in para 94 (?) on p 63 of her affidavit of 13 January 2025 she had received the next day (“sent to me from Ms lzod by email on October 24. 2023 at 8:31 AM”). I am not persuaded that that allegation has reasonable prospects of success either.
A pleading will be embarrassing if it does not enable the respondent to know, with sufficient clarity, the case which it is required to meet: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]. In Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218 at [34], speaking of a Federal Court Rule that applies in this Court, Markovic J said:
The concept of embarrassment in r 16.21(1)(d) can include a pleading that is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, is unintelligible or vague see: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at 269, [18]. …
In this case, many of the amendments proposed by Ms Harrison are vague and confusingly discursive. They are embarrassing on that account.
Overall, the conclusions I have reached indicate that the proposed amendments ought not be allowed.
Additionally, the rights of other litigants should not be overlooked and the comments I made in the Adjournment Judgment on this topic are equally applicable to the present situation. Finally, the prejudice that the Department would suffer by the Court allowing the amendments is real because I accept that doing so would necessitate an adjournment of the matter. In addition to additional preparation for hearing, which is applicable to the adjournment, I accept that the Department would have to recast its case, wasting much work already performed.
CONCLUSION
For these reasons I conclude that the application to amend the statement of claim should be refused.
Consequently, the applicant’s application in a proceeding filed 7 February 2025 will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 April 2025
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