Hutchinson v Comcare

[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…