James v Commonwealth of Australia - [2023] FCA 1241

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 1241
Decision Date: 12 September 2023

CaseChat Overview and Summary

The applicant, James, sought to amend her statement of claim in proceedings against the Commonwealth of Australia. The court was required to consider the application under the principles of case management and to decide whether the application should be granted. The application also included a request for the judge to recuse herself. The Federal Court, in dismissing the application to amend the statement of claim, found that the application was an abuse of process and that the case management principles required the dismissal. The court also declined to recuse itself, finding no grounds to do so.

The legal issues that the court had to resolve included whether the application to amend the statement of claim was an abuse of process, whether the case management principles required the dismissal of the application, and whether there were grounds for the judge to recuse herself. The court considered the relevant case law and found that the application to amend the statement of claim was an abuse of process and that the case management principles required the dismissal of the application. The court also found that there were no grounds for the judge to recuse herself.

The court found that the application to amend the statement of claim was an abuse of process because it was made after the respondent had filed its defence and the case had been listed for a case management conference. The court held that the application was an abuse of process because it was made after the respondent had filed its defence and the case had been listed for a case management conference. The court also found that the case management principles required the dismissal of the application because the applicant had not shown any good reason for the delay in making the application. The court further found that there were no grounds for the judge to recuse herself because the applicant had not shown any bias or partiality on the part of the judge.

The court ordered that the application to amend the statement of claim be dismissed with no order as to costs. The court also ordered that the respondent file a draft list of intermediate issues that it considered arose for determination in the proceedings by a specified date. The case management hearing was adjourned until a specified date, and the case management conference listed for an earlier date was vacated. The court further ordered that a copy of the transcript of the proceedings be provided to the parties.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	12 SEPTEMBER 2023