Lim v Flinders University of South Australia

[2018] FCCA 1291

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM v FLINDERS UNIVERSITY OF SOUTH AUSTRALIA & ORS [2018] FCCA 1291

Catchwords:
INDUSTRIAL LAW – Application to join additional respondents – application dismissed – leave given to applicant to file amended claim.

Legislation:

Fair Work Act 2009 (Cth), s.341(1)

Applicant: HAZEL LIM

First Respondent: FLINDERS UNIVERSITY OF SOUTH AUSTRALIA

Second Respondent: ANAND GANESAN

Third Respondent: DEREK CHEW

Fourth Respondent: STEVE WALTHAM

Fifth Respondent: BILL HEDDLE

Sixth Respondent: ROSS MCKINNON

File Number: ADG 155 of 2017

Judgment of: Judge Heffernan

Hearing date: 19 April 2018

Date of Last Submission: 19 April 2018

Delivered at: Adelaide

Delivered on: 19 April 2018 – ex tempore

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr I Colgrave

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The Applications in a Case filed by the applicant on 5 December 2017 and 9 April 2018, as they relate to seeking to join as 7th and 8th respondents, Heather Dawson-Howard and Helen Webb, are both dismissed.

2. Within 21 days, the applicant has leave to file and serve an Amended Claim.

3. Within 42 days, the respondents are to file and serve their Amended Responses.

4. Within 14 days, both parties are to file and serve a list of documents on which they seek to rely for the purpose of these proceedings.

5. Further consideration of the matter is adjourned to 9.30am on 6 August 2018 before Judge Heffernan for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 155 of 2017

HAZEL LIM

Applicant

And

FLINDERS UNIVERSITY OF SOUTH AUSTRALIA

First Respondent

ANAND GANESAN

Second Respondent

DEREK CHEW

Third Respondent

STEVE WALTHAM

Fourth Respondent

BILL HEDDLE

Fifth Respondent

ROSS MCKINNON

Sixth Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have considered the submissions made by both the parties in relation to this matter.  Ms Lim has applied to the Court by way of Applications in a Case filed on 5 December last year, and 9 April 2018, for leave to include a seventh respondent, Ms Heather Dawson-Howard, and an eighth respondent, Ms Helen Webb.  Those applications are opposed by the respondents.  Ms Lim indicated to the Court that she also sought to further amend her claim, having had the benefit of some legal advice.[1]

   [1]     See transcript, page 2, line 17.

2. As I indicated to Ms Lim during the course of argument, I am only able to make a determination based on evidence that I have before me and on the basis of the pleadings as they presently stand. 

3. On the basis of the evidence that has been filed and that I can consider, I am not satisfied that there is any evidence before me, or any matter alleged in the claim as filed to date, that would be capable of establishing that either the proposed seventh respondent or the proposed eighth respondent have infringed upon a workplace right within the meaning of s.341(1), or committed adverse action under the Fair Work Act 2009 (Cth).

4. For that reason, I dismiss the application that the proposed seventh and the proposed eighth respondent be joined as respondents to these proceedings.

5. I will pause to make an observation that I raised with Mr Colgrave when he first commenced to make his submissions and that is, on the assumption that the seventh and the eighth respondents are employees of the first respondent, and that is not disputed, then Ms Lim would not be foreclosed in any evidence that she presented at trial from referring to actions or conduct of the proposed seventh or eighth respondents in their role as employees of the first respondent in pursuing her claim against the first respondent for breaches of the Fair Work Act.

6. I will give the applicant leave to file an amended claim to allege any further grounds of adverse action, and the respondents to file amended responses.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  21 May 2018