Health Services Union v Jackson
[2014] FCA 1215
•5 November 2014
FEDERAL COURT OF AUSTRALIA
Health Services Union v Jackson [2014] FCA 1215
Citation: Health Services Union v Jackson [2014] FCA 1215 Parties: HEALTH SERVICES UNION v KATHERINE JACKSON
ROBERT ELLIOTT v HEALTH SERVICES UNION
File numbers: VID 1042 of 2013
NSD 1501 of 2013Judge: TRACEY J Date of judgment: 5 November 2014 Catchwords: INDUSTRIAL LAW – application to adjourn hearing – where respondent unable to give instructions – where evidence of medical practitioner suppressed pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) Legislation: Fair Work Act 2009 (Cth) s 90
Federal Court of Australia Act 1976 (Cth) s 37AG
Long Service Leave Act 1992 (Vic)Date of hearing: 5 November 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant/Cross Claimant: Mr M Irving Solicitor for the Applicant/Cross Claimant: Holding Redlich Counsel for the Respondent/Third Cross Respondent: Mr D Pritchard SC Solicitor for the Respondent/Third Cross Respondent: Beazley Singleton
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1042 of 2013
BETWEEN: HEALTH SERVICES UNION
ApplicantAND: KATHERINE JACKSON
RespondentBETWEEN: KATHERINE JACKSON
Cross ClaimantAND: HEALTH SERVICES UNION
Cross Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
5 NOVEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The trial, fixed to commence on 1 December 2014, be adjourned to a date to be fixed.
2.The respondent be relieved of the obligation to comply with any directions with which she is yet to comply until a date to be fixed.
3.The respondent’s interlocutory application dated 13 October 2014 otherwise be dismissed.
4.The further hearing of the applicant’s interlocutory application dated 29 September 2014 be adjourned to a date to be fixed.
5.The proceedings be listed for mention on 6 February 2015 at 9:30 am.
6.Pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the oral evidence of Associate Professor Irwin Pakula, given on 5 November 2014, not be published.
7.Annexure B to the affidavit of Associate Professor Irwin Pakula filed herein on 29 October 2014 be placed in a sealed envelope marked “Confidential – not to be opened without leave of a judge” and be restricted from publication to any person other than the legal advisers to the applicant.
8.On or before 20 January 2015 the respondent’s solicitor file and serve medical evidence relating to the capacity of the respondent to give instructions relating to the conduct of the proceeding and the impact of so doing on her health.
9.Liberty to apply.
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
FAIR WORK DIVISION
NSD 1501 of 2013
BETWEEN: ROBERT ELLIOTT
ApplicantAND: HEALTH SERVICES UNION
RespondentBETWEEN: HEALTH SERVICES UNION
Cross ClaimantAND: MICHAEL WILLIAMSON
Cross RespondentAND KATHERINE JACKSON
Third Cross Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
5 NOVEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The trial, fixed to commence on 1 December 2014, be adjourned to a date to be fixed.
2.The third cross respondent be relieved of the obligation to comply with any directions with which she is yet to comply until a date to be fixed.
3.The third cross respondent’s interlocutory application dated 13 October 2014 otherwise be dismissed.
4.The further hearing of the respondent’s interlocutory application dated 29 September 2014 be adjourned to a date to be fixed.
5.The proceedings be listed for mention on 6 February 2015 at 9:30 am.
6.Pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the oral evidence of Associate Professor Irwin Pakula, given on 5 November 2014, not be published.
7.Annexure B to the affidavit of Associate Professor Irwin Pakula filed herein on 29 October 2014 be placed in a sealed envelope marked “Confidential – not to be opened without leave of a judge” and be restricted from publication to any person other than the legal advisers to the respondent.
8.On or before 20 January 2015 the third cross respondent’s solicitor file and serve medical evidence relating to the capacity of that respondent to give instructions relating to the conduct of the proceeding and the impact of so doing on her health.
9.Liberty to apply.
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
FAIR WORK DIVISION
VID 1042 of 2013
NSD 1501 of 2013
BETWEEN: HEALTH SERVICES UNION
ApplicantAND: KATHERINE JACKSON
Respondent
BETWEEN: ROBERT ELLIOTT
ApplicantAND: HEALTH SERVICES UNION
Respondent
JUDGE:
TRACEY J
DATE:
5 NOVEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There are two proceedings before the Court. It will be convenient to refer to them as “the Victorian proceeding”, (VID 1042 of 2013), and “the New South Wales proceeding”, (NSD 1501 of 2013). On 24 March 2014 I ordered that the two proceedings should be heard concurrently.
In the Victorian proceeding the HSU is seeking orders that Ms Jackson pay to it some $280,000, together with interest and costs.
These claims arise from two matters. The first is referred to in the pleadings as the “Toomey Pegg matter”. Toomey Pegg is a firm of solicitors. The HSU alleges that, acting in breach of duty and without authority, Ms Jackson retained Toomey Pegg to provide legal services to the HSU thereby incurring a liability, on the part of the HSU, for legal fees totalling $34,725.
The second claim in the Victorian proceeding related to what was referred to as “the NHDA transfers”. The acronym referred to the National Health Development Account which, it is alleged, Ms Jackson opened and operated as the account holder. The HSU alleged that, between February 2004 and May 2010 Ms Jackson, acting without authority and in breach of duty, caused a total of $246,500 to be transferred from the funds of the Victoria No 3 Branch of the HSU to the NHDA. The HSU seeks to recover this amount.
Ms Jackson cross-claimed in the Victorian proceeding for wages said to be due to her as National Secretary of the HSU between 2012 and 2014 during which period she was on sick leave. This cross-claim was dismissed by operation of a self-executing order which I made on 15 August 2014.
On that day I ordered that, unless Ms Jackson filed and served a verified list of documents and provided access to discoverable documents on or before 5 September 2014, her cross-claim be dismissed. Ms Jackson did not comply with either of these orders.
As will be seen later in these reasons the self-executing order was made following a series of earlier defaults by Ms Jackson.
The New South Wales proceeding was commenced by Mr Robert Elliott who was National Secretary of the HSU from 1996 to 2002. In this proceeding Mr Elliott sought orders for payment in lieu of untaken annual leave and long service leave, declarations and compensation for contravention of s 90(2) of the Fair Work Act 2009 (Cth) (“the Act”), imposition of pecuniary penalties payable to Mr Elliott pursuant to the Act and the Long Service Leave Act 1992 (Vic) and an award of damages for breach of contract.
The HSU cross-claimed against the former President of the HSU, Mr Michael Williamson, and Ms Jackson alleging that, acting without authority, and in breach of duty, they had caused the HSU to enter into an agreement with Mr Elliott pursuant to which he was paid remuneration and superannuation benefits totalling $414,985 to which he was not entitled. The HSU sought interest and costs in respect of its cross-claim.
In April 2014 Mr Elliott discontinued his claim against the HSU and the cross-claim against Mr Williamson was stayed by order of the Court. Following these developments the only remaining claim being pressed in the New South Wales proceeding was that of the HSU against Ms Jackson.
Once it was ordered that the two proceedings were to be heard concurrently a consolidated statement of claim was filed by the HSU and a defence was filed by Ms Jackson.
These proceedings have been listed for trial, commencing on 1 December 2014, since 9 May 2014. Various directions have been given with a view to readying them for hearing. As a result of repeated defaults by Ms Jackson, the HSU has moved the Court for summary judgment.
The HSU’s interlocutory application was listed for hearing on 30 September 2014. Notice of the hearing had been given to Ms Jackson’s solicitors. The interlocutory application and supporting materials had been served. Despite this there was no appearance by Ms Jackson.
At 8:18 am on the morning of 30 September 2014 Ms Jackson’s solicitors advised the Court by e-mail that Ms Jackson was in hospital and the solicitor with carriage of the matter was otherwise professionally engaged at the time of the hearing. No evidence supporting these claims was filed.
For reasons which I will explain I determined that the hearing should proceed. Counsel for the HSU made oral submissions which supplemented written submissions which had earlier been filed and served on Ms Jackson. He also formally read the affidavits on which he relied in support of the HSU’s application for summary judgment or, in the alternative, an order that it be given leave to amend its statement of claim to add further claims.
Given the serious consequences for Ms Jackson of the Court acceding to the HSU’s application I directed that copies of the minutes of orders sought by the HSU in each proceeding and a transcript of the oral submissions made on behalf of the HSU be forwarded to Ms Jackson’s solicitors and ordered that she have until 10 October 2014 to file and serve any answering submissions. I adjourned the further hearing of the interlocutory application until 14 October 2014.
On 13 October 2014 Ms Jackson’s solicitors filed an interlocutory application seeking the vacation of the hearing dates and any “outstanding directions”. The application was supported by an affidavit filed by Ms Jackson’s solicitor Mr Philip Beazley. In it he deposed that Ms Jackson had, in mid-September, been admitted as an inpatient at a medical facility and that he had been unable to obtain instructions from her relating to the litigation. He exhibited a medical certificate from Ms Jackson’s treating doctor.
Although this material provided some understanding of Ms Jackson’s medical condition it did not address, with any particularity, the impact of that condition on her capacity to give instructions and otherwise deal with the remaining procedural matters which required attention prior to trial. Nor did it assist in an understanding of Ms Jackson’s capacity to participate in the hearing.
In these circumstances I ordered that the further hearing of the two interlocutory applications be adjourned until this afternoon and directed that Ms Jackson’s solicitors file and serve medical evidence relating to her capacity to give instructions relating to the conduct of the proceeding and the impact on her of doing so.
On 29 October 2014 Ms Jackson’s solicitors filed an affidavit which had been affirmed the previous day by Associate Professor Irwin Pakula who deposed that he was Ms Jackson’s current treating specialist. He confirmed that she remained an inpatient in a medical facility. He expressed the opinion that Ms Jackson’s condition was such that it was not possible for her to prepare for and participate in a hearing fixed for the first two weeks of December. The earliest time at which she might be in a position to give attention to issues relating to the litigation would be the middle of January 2015 or later.
Associate Professor Pakula was cross-examined on his affidavit. He confirmed that Ms Jackson remained in a medical facility under his care as a voluntary patient. He gave evidence about the medication which she was receiving. He deposed that it would be necessary for Ms Jackson to continue to take that medication for up to a year. He identified side effects of it as including drowsiness. But he said that the medication, over time, improves the patient’s ability to concentrate.
Associate Professor Pakula said that Ms Jackson’s medical conditions had fluctuated in severity. Certain stressors such as Court appearances or dealing with legal documents could make the symptoms of her condition more severe. He was, nonetheless, confident that, with correct treatment, she will be able to deal with normal activities and to concentrate on and process complex information by next year, even though she would be continuing to receive medication. He said that it would take considerably longer for her to regain the capacity to perform full-time work. He further said that, although there was a risk of recurrence of the more severe form of Ms Jackson’s conditions, such a risk would be reduced by the ongoing treatment that he was overseeing.
I accept the evidence of Associate Professor Pakula.
Ms Jackson faces serious allegations in each of the proceedings. The interests of justice requires that she should have the opportunity to give careful attention to the allegations and to provide a considered response. She should be in a position to do so within a relatively short period which will include the long legal vacation.
The trial dates should be vacated and Ms Jackson should be relieved of outstanding procedural obligations.
The HSU did not seek to submit that the trial dates should be held, but it made plain that the matter of Ms Jackson’s health should be reviewed shortly after the middle of January 2015, with a view to ascertaining whether the matter was able to proceed. It also foreshadowed the possibility that an application would need to be made to the Court for the appointment of a litigation representative to oversee Ms Jackson’s interests in the proceedings.
The HSU’s application for summary judgment should be further adjourned. By reason of her medical condition Ms Jackson has not been in a position to consider the arguments advanced by the HSU in support of that application. She should have the opportunity to do so.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 5 November 2014
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