James v Commonwealth of Australia
[2023] FCA 1241
•12 September 2023
FEDERAL COURT OF AUSTRALIA
James v Commonwealth of Australia [2023] FCA 1241
File number: WAD 165 of 2022 Judgment of: COLVIN J Date of judgment: 12 September 2023 Date of publication of reasons: 17 October 2023 Catchwords: PRACTICE AND PROCEDURE - application to amend statement of claim - application dismissed by applying case management principles - request for recusal declined Legislation: Fair Work Act 2009 (Cth) s 345 Cases cited: Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 36 Date of hearing: 12 September 2023 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr JB Blackburn SC Solicitor for the Respondent: HBA Legal ORDERS
WAD 165 of 2022 BETWEEN: GUNILLA JAMES
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
12 SEPTEMBER 2023
THE COURT NOTES THAT:
Orders to the following effect have been made in these proceedings:
1.Matter numbers WAD 156 of 2022 and WAD 165 of 2022 be heard together and the evidence in one case be evidence in the other.
THE COURT ORDERS THAT:
1.The applicant's application to replace or amend her statement of claim in the terms annexed to her affidavit dated 11 September 2023 is dismissed with no order as to costs.
2.On or before 17 November 2023 the respondent shall file a draft list of intermediate issues that it considers arise for determination in the proceedings. So far as possible, the list shall be expressed in terms which do not require regard to any other document in order to understand the issues.
3.The case management hearing be adjourned until 9.30 am AWST on 27 November 2023.
4.The case management conference listed for 2 November 2023 is vacated.
5.A copy of the transcript of today's proceedings be provided to the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Ms Gunilla James was formerly a Commonwealth employee. She worked at Centrelink and then for the Child Support Agency. Ms James resigned her employment in December 2021. She says she resigned due to being permanently incapacitated 'due to sustaining injuries from victimisation, harassment, actions and omissions for making complaints about bullying and harassment when … mentally ill'.
Acting on her own behalf, Ms James has commenced proceedings in this Court in which she claims that the Commonwealth has breached various provisions of the Fair Work Act 2009 (Cth). She seeks various remedies including damages and an apology. With her originating application, Ms James filed a detailed narrative statement of claim setting out the events said to give rise to contraventions of the Fair Work Act by the Commonwealth. In December 2022, the Commonwealth filed a detailed defence in response.
By affidavit dated 11 September 2023, Ms James indicated that she wished to replace her statement of claim with a new document attached to her affidavit. She explained that she wished to do so because the proposed replacement document had better specifics and more detail due to her case encompassing a period of four years and 'multiple repeats of alleged breaches'. She filed an interlocutory application in which she sought an order for leave to amend her statement of claim.
The application for leave to amend was listed for mention at a case management hearing the next day, 12 September 2023. At that hearing I determined, on the application of case management principles, that the application for leave to amend in the terms proposed should be dismissed.
By email dated 4 October 2023, Ms James expressed the view that there had been a misunderstanding at the case management hearing on 12 September 2023 concerning her application to replace her existing statement of claim. Ms James indicated that she wished to pursue the application and proposed to apply for a further interlocutory hearing.
I indicated that in view of the matters raised in the email I would publish reasons for my decision to dismiss the application for leave to amend the statement of claim. These are my reasons.
The reasons for the case management hearing on 12 September 2023
It is first necessary to explain the circumstances that gave rise to the case management hearing on 12 September 2023 and the purpose for which it was convened.
The present proceedings have been case managed together with separate proceedings in WAD 156 of 2022 also brought by Ms James against the Commonwealth. Orders were made in March 2023 for the two applications to be heard together on affidavit evidence.
Directions were also made which required Ms James to provide a list of all the documents to which she expected to refer at trial and for the Commonwealth to collate those documents into a bundle. Ms James was then to file lay affidavit evidence. By those directions, Ms James' affidavit was not to exhibit documents but was to cross-refer to documents in the bundle. The Commonwealth was then to file its lay evidence in response together with its bundle of documents. Thereafter, the parties were each to file a short list of key factual findings relied upon to support or answer the application (as the case may be). They were also each to file a short list of issues for determination.
After those directions were made, Ms James sought disclosure of documents from the Commonwealth by serving a series of notices to produce. Compliance with those notices delayed preparation of the list of documents and the affidavits of Ms James.
At a case management hearing held on 1 August 2023 to consider the way forward, Ms James indicated that she needed to lodge an amended statement of claim so that she could list the relevance of certain documents that had been obtained in response to the notices to produce. Ms James also indicated that she may seek more discovery from the Commonwealth.
On the basis of my assessment that the proposed means of managing the case to a point where the factual and legal issues might be exposed was not working, I made an order vacating the directions that had been made. I did so on the basis that Ms James would be provided with the final tranche of documents by the Commonwealth in response to the notices to produce and then have an opportunity to consider the nature of the case that she wished to advance. I indicated that a further case management hearing would be convened thereafter at which time Ms James would indicate the nature of the case that she wished to advance and whether she sought any further documents. I made clear that a further statement of claim should not be prepared for that case management hearing. Rather, if there were things that Ms James wished to add to her case then she should be in a position, at the case management hearing, to describe what they were. I explained that the purpose of the case management hearing would be to consider the procedure to be used to confine the issues. I expressed the view that there seemed to be some very minor matters that were identified and that there were some serious matters raised, but the Court could not be adjudicating everything that happened over many years in two places of employment.
I indicated to Ms James that she should identify her main complaints. I made a direction requiring each of the parties to file a list of the matters that the party proposed to raise at the case management hearing. I explained that if Ms James wanted to add things to her case or amend her statement of claim or obtain more documents then she would need to give a brief description of those things in the list of matters.
The next case management hearing at which to consider the lists of matters and how best to proceed was scheduled for 12 September 2023.
The application for leave to amend
Despite the matters stated at the case management hearing on 1 August 2023, Ms James prepared her proposed replacement statement of claim and filed her interlocutory application for leave to amend the day before the scheduled further case management hearing. In those circumstances, the application to amend was listed for mention on 12 September 2023.
The Commonwealth's position was that the application for leave to amend should be dismissed. It maintained that the existing statement of claim had the benefit that it was a narrative account of the complaints raised by Ms James. It contended that substantial work had been undertaken extracting from that document the Commonwealth's understanding of the issues and in responding to the allegations with a detailed defence.
One difficulty with the application to amend was that the filing of the application was contrary to the basis upon which the case management hearing on 12 September 2023 had been convened. Another was that the proposed replacement document did not adopt the form of a concise statement of the claims that Ms James sought to advance. In some respects it set out detailed matters of evidence. In other respects it adopted a more argumentative form akin to submissions that might be advanced in support of the case at the final hearing.
The case management hearing on 12 September 2023
As to the application to amend, I explained to Ms James at the case management hearing on 12 September 2023 that I had to decide whether it was an application that should be allowed to proceed. Ms James was invited to say why she needed to amend the statement of claim. She explained that she thought it was probably fair to the Commonwealth to see the case they have to answer because what was in the proposed replacement statement of claim was 'exactly in detail' what she proposed to advance at trial. Ms James also explained that she was arguing that there was misrepresentation by the Commonwealth. It emerged that the reference to misrepresentation was to s 345 of the Fair Work Act which provides that a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person or the exercise or effect of such a right.
Ms James maintained that her workplace complaints had been misrepresented. I expressed the view that a complaint of that kind concerned the process that had been followed in dealing with her complaints and was not a claim that she had been misled about her right to make a complaint.
I then invited Ms James to identify any matter in addition to something about misrepresentation that she was seeking to add to her case by the amendments. After listening to the response from Ms James I expressed the concern that there was nothing new being identified. What then emerged was a concern on the part of Ms James that she may be foreclosed from advancing some of the evidence that she wished to lead if she did not amend her statement of claim.
I then indicated that one way of proceeding to address that concern was for Ms James to file her affidavit evidence and then for the Commonwealth to prepare a list of what it considers the issues to be that was reasonably detailed. That list of issues then could be provided to Ms James who could indicate whether she was satisfied that the list of issues covered everything that she wished to raise. If Ms James maintained that there were other issues raised by her statement of claim and her affidavit evidence then there could be a hearing at which Ms James could explain what those issues are and I could determine whether they are issues or not.
I then explained that a process of that kind would mean that the statement of issues would, in a way, take over from the pleading (that is the statement of claim and the defence) and the Court would use the statement of issues to make sure that it recorded all the questions that the Court was being asked to determine.
By the time of the case management hearing the Commonwealth had filed a short form statement of issues for each of the two proceedings. I formed the view that the statement of issues might be able to be expanded with some additional information to be a basis upon which the hearing might be efficiently conducted.
Reasons for dismissing application for leave to amend
In the above circumstances, I concluded as a matter of case management that Ms James should not be allowed to proceed with her application for leave to amend. I did so on the basis that the Court proposed to adopt a procedure by which Ms James would file her evidence (and identify the documents to which she proposed to refer at trial) and then the Commonwealth would prepare a list of the issues. Ms James would then have an opportunity to raise any matters that she considered should be added to that list of issues.
Having regard to the form of the proposed replacement statement of claim (which did not contain a concise statement of the case to be advanced) and the fact that the existing statement of claim did set out in a narrative form a helpful description of the complaints that Ms James sought to raise, I concluded that it was likely that debate as to the form of any amendment to the statement of claim was likely to delay the proceedings and be unlikely to provide any significant further assistance in identifying the real issues for determination. Rather, the preferable course was to craft a procedure by which to expose those issues as efficiently as possible.
In circumstances where there was already a narrative statement of claim that had been prepared by Ms James and her main concern appeared to be to ensure that she was not prevented from raising all the evidence that she wished to present to support her claims, as a matter of case management, a process by which Ms James could proceed to file the evidence on which she sought to rely and then a statement of the issues that she wished to raise could be prepared was to be preferred to a course which considered possible amendments to the statement of claim. It would enable Ms James to file the evidence that she proposed to rely upon to support her case and to identify all the documents. This would address her concern that she might not be able to include something. The issues could then be identified. If there was a dispute then the Court could hear from Ms James about any changes to the list of issues. The Court could then finalise the list of issues. The Commonwealth could then be required to provide its evidence and documents. Ms James would then have a chance to file any responding material and the case could proceed to trial on the basis of the statement of issues.
I concluded that a procedure of the kind I have described would be fair to Ms James because it would give her an opportunity to raise any additions to the list of issues in response to the document to be prepared by the Commonwealth. By that mechanism she would have, in substance, the ability to amend if indeed she could demonstrate that there were other issues that she should be allowed to raise.
In effect, the procedure for settling a list of issues for determination at trial after Ms James had filed her evidence and identified the documents she wanted to refer to at the final hearing would be a way of allowing her to make any necessary amendments.
For those reasons, I dismissed the application for leave to amend and made directions for the process I have explained.
Further submissions from Ms James
By email dated 9 October 2023, Ms James sought to make further submissions as to why her application for an amendment should be allowed. However, as I have explained I have already ordered that the interlocutory application be dismissed. It may be that matters raised in those informal submissions may be relevant when it comes to identifying the list of issues for determination. However, I have not had regard to those matters in preparing these reasons.
Recusal request
In her email of 10 October 2023, Ms James requested that I recuse myself from these proceedings. She has raised concerns that I have expressed the view that her case is insignificant and that she has made a lot of complaints and that her case is small. In consequence she says that she has hardly any trust left that the trial will be fair.
I have reviewed the transcript of the hearings on 1 August 2023 and 12 September 2023. It is the case, as I have indicated in these reasons, that I have expressed concern that there were many complaints raised in the proceedings and that there needed to be a process by which the main things the subject of complaint were separated from some very minor matters that had been identified. I have also expressed concern that a considerable number of notices to produce have been issued and I have made a direction that no further notices be issued and any further request for disclosure be made by way of application for discovery so that the extent of any such requests can be supervised by the Court.
I do not accept that any of those statements suggests that I have formed the view that Ms James' complaints are small or insignificant. Quite the contrary, I have been at pains to emphasise that the serious aspects of the complaints need to be identified so that those main issues can be addressed without undue delay.
The principles to be applied when a question is raised as to the independence or impartiality of a judge are well established. They were recently stated by the High Court in Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11]‑[12] in the following terms:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that 'a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer 'is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice'.
(footnotes omitted)
Applying those principles, I am not persuaded that the statements I have made concerning the need to focus upon the main issues which need to be separated from very minor complaints might give rise to an apprehension in a fair-minded lay observer that I may not bring a fair and open mind to the determination of those main issues at a final hearing. I have described those main issues as serious but have otherwise expressed no view as to their merits.
For those reasons, I do not propose to disqualify myself from hearing these proceedings.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 17 October 2023
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