Hutchinson v Comcare

Case [2017] FCA 136


FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2017] FCA 136

File number: VID 861 of 2015
Judge: BROMBERG  J
Date of judgment: 21 February 2017
Catchwords: PRACTICE AND PROCEDURE – interlocutory application to set aside orders of the Court – where the orders provided leave to re-plead the claim conditional on the pleading being prepared and certified by a lawyer – where the orders provided for the dismissal of the proceeding in circumstances where the conditional leave not exercised – where the only basis for the application was the renewed assertion that the unrepresented litigant was capable of pleading a reasonable cause of action – application dismissed
Legislation:

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth) ss 340, 342, 351, 570

Federal Court Rules 2011 (Cth) rr 39.05

Occupational Health and Safety Act 1991 (Cth)

Public Service Act 1999 (Cth)

Cases cited:

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

Nulyarimma v Thompson (1999) 96 FCR 153

Professional Administration Service Centres Pty Limited v Commission of Taxation [2012] FCAFC 180, 295 ALR 52

Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381

Thorpe v Commonwealth (No 3) [1997] HCA 21; 71 ALJR 767

Date of hearing: Determined on the papers
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: The applicant is self-represented
Counsel for the Respondent: Ms R Sweet
Solicitor for the Respondent: Norton Rose Fulbright Australia

ORDERS

VID 861 of 2015
BETWEEN:

KAREN HUTCHINSON

Applicant

AND:

COMCARE

Respondent

JUDGE:

BROMBERG  J

DATE OF ORDER:

21 FEBRUARY 2017

THE COURT ORDERS THAT:

1.Order 2 of the orders made on 6 February 2017 is set aside.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMBERG J:

  1. By an interlocutory application dated 29 January 2017, the applicant (“Ms Hutchinson”) sought the following orders (errors in original):

    1.The Applicant respectfully asks the court to set aside the previous orders requiring a lawyer to prepare a 'Proposed Fourth Further Amended Statement of Claim' and allow the Applicant to submit a 'Proposed Fourth Further Amended Statement of Claim' on or before 6 February 2017.

    2.Costs associated with the Applicant's fruitless dealings with both MDC Legal and FourLion Legal because of the Respondents unreasonable requests to the court.

  2. The first order sought by Ms Hutchinson is directed at the orders I made on 26 October 2016, and in particular order 3 thereof (“Order 3”).  Those orders were made in relation to an interlocutory application made by the respondent (“Comcare”) for the Third Further Amended Statement of Claim filed by Ms Hutchinson to be struck out and for summary judgment to be entered for Comcare.  The orders that I made on 26 October 2016 were in the following terms:

    1.        The applicant’s interlocutory application of 2 October 2016…

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Details
AGLC
Hutchinson v Comcare [2017] FCA 136
Case
[2017] FCA 136
Decision Date

CaseChat Overview and Summary

Hutchinson v Comcare was an interlocutory application made by the applicant, Ms Hutchinson, to set aside certain orders made by the Court in the proceeding between herself and Comcare. Ms Hutchinson had originally commenced proceedings in the Federal Circuit Court of Australia on 19 October 2015, which were subsequently transferred to this Court. The application to set aside the orders was based solely on the contention that Ms Hutchinson, who was proceeding unrepresented, was capable of pleading a reasonable cause of action.

The legal issues the Court was required to decide were whether the interlocutory application should be granted and, if so, whether the orders made on 6 February 2017 should be set aside. The Court found that the application should be dismissed. The Court found that the application was made too late and the only basis for the application was a renewed assertion that the unrepresented litigant was capable of pleading a reasonable cause of action. The Court found that Ms Hutchinson had had ample opportunity to obtain legal assistance and to amend her pleadings with the assistance of a lawyer but had not taken up that opportunity. The Court also found that there were no other grounds upon which the orders could be set aside.

The Court dismissed the interlocutory application. Order 2 of the orders made on 6 February 2017 was set aside. The effect of this order was to dismiss the proceeding. The entry of this order is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Order 2 of the orders made on 6 February 2017 is set aside.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is necessary that I set out some of the background to Ms Hutchinson’s interlocutory application before dealing more directly with the reasons for my conclusion that the application should be dismissed. Background On 19 October 2015, Ms Huchinson commenced this proceeding in the Federal Circuit Court of Australia. By an order made on 12 November 2015 the proceeding was transferred to this Court. When the proceeding first came on for a case management hearing before me, I was asked, by consent, to make an order, which I made, that the applicant have leave to file and serve an Amended Application and an Amended Statement of Claim. That was done on the basis of Ms Hutchinson’s submission that she intended to find legal representation in order to help her re-plead her case. Despite that indication, Ms Hutchinson did not obtain legal assistance. The reason for that is not known to me. There may well be good reasons why Ms Hutchinson was unable to obtain legal assistance. In any event, on 25 February 2016 an Amended Application was filed together with an Amended Statement of Claim. Without going into detail, the Amended Statement of Claim drafted by Ms Hutchinson included significant changes. The original Statement of Claim was 764 paragraphs long over some 162 pages and traversed events from 1998 through to 2010. It was directed at apparent or possible causes of action including adverse action under ss 340, 342 and 351 of the Fair Work Act 2009 (Cth) (“FW Act”) and other causes under the Occupational Health and Safety Act 1991 (Cth), the Disability Discrimination Act 1992 (Cth) and the Public Service Act 1999 (Cth). The Amended Statement of Claim was shorter. A ‘clean’ version of the Amended Statement of Claim with deleted paragraphs removed occupied some 81 pages. The claims made by Ms Hutchinson appeared to be of narrower compass, based exclusively in adverse action claims under ss 340, 342 or 351 of the FW Act. However, Ms Hutchinson appears to have added three new claims of adverse action. On 18 March 2016, I made an order that Ms Hutchinson file and serve a Further Amended Statement of Claim and a Further Amended Application. That order was made by consent and the application for that leave must have included some acknowledgment by Ms Hutchinson that her pleadings required further amendment. On 31 March 2016, the Further Amended Application together with a Further Amended Statement of Claim were filed. The changes made between the Amended Statement of Claim and the Further Amended Statement of Claim were not tracked in a way that allowed those changes to be easily distinguished from the changes made between the Statement of Claim and the Amended Statement of Claim. It is difficult to know exactly the extent of the changes made by the Further Amended Statement of Claim, however, it appears that some paragraphs were deleted but yet other new paragraphs were inserted. On 20 April 2016, a mediation of the proceeding was conducted by a Registrar of the Court. The proceeding was not settled.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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