Moore v Barwon Health

Case [2024] FCA 1387

FEDERAL COURT OF AUSTRALIA

Moore v Barwon Health [2024] FCA 1387

File number(s): VID 177 of 2022
Judgment of: DOWLING J
Date of judgment: 25 November 2024
Catchwords: PRACTICE AND PROCEDURE – application for leave to amend pleadings – application for leave to add individual respondents – leave to amend granted in part by consent – application to add individual respondents dismissed  
Legislation:

Fair Work Act 2009 (Cth) s 570(2)(b)

Federal Court Act 1976 (Cth) s 37M

Fair Work Regulations 2009 (Cth) r 3.42

Federal Court Rules 2011 (Cth) rr 16.12, 16.53
Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370

Fair Work Ombudsman v Hu [2019] FCAFC 133

Sabapathy v Jetstar Airways [2021] FCAFC 25

Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 54
Date of hearing: 25 November 2024
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr J Tracey KC and Mr P Tiernan
Solicitors for the Respondent: MinterEllison

ORDERS

VID 177 of 2022
BETWEEN:

DR EILEEN MOORE

Applicant
AND:

BARWON HEALTH (ABN 45 877 249 165)

Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Dr Moore is granted leave to file the Proposed Amended Originating Application in the form served on Barwon Health on 30 October 2024, save that:

(a)leave is refused to join the proposed 7 individual respondents;

(b)leave is refused to add paragraphs 4-10 commencing on page 6 of the Proposed Amended Originating Application; and

(c)leave is refused to add paragraphs 11-15 commencing on page 8 of the Proposed Amended Originating Application, insofar as those paragraphs seek relief against the proposed seven individual respondents.

2.Dr Moore is granted leave to file the Proposed Amended Statement of Claim in the form served on Barwon Health on 30 October 2024, save that:

(a)leave is refused to add the proposed seven individual respondents; and

(b)leave is refused to add the following paragraphs: 3, 4, 5, 6, 7, 8, 9, 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).

3.On or before 18 December 2024, Dr Moore shall file and serve an amended originating application and an amended statement of claim in conformity with the grants of leave pursuant to Orders 1 and 2.

4.On or before 24 March 2025, Barwon Health shall file and serve a defence to the amended statement of claim.

5.On or before 7 April 2025, Dr Moore shall file any reply.

6.The matter be listed for a further case management hearing on a date not before 14 April 2025.

Note:   Entry of orders is dealt with in Rule…

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Moore v Barwon Health [2024] FCA 1387
Case
[2024] FCA 1387
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Dr. Moore brought a proceeding against Barwon Health, seeking leave to amend her pleadings to add individual respondents. The case was initially filed on 8 April 2022, with the statement of claim being filed on 11 October 2022. Pleadings closed by operation of rule 16.12 of the Federal Court Rules 2011 on 29 November 2022. Dr. Moore made an application to amend her pleadings on 23 April 2024, which was dismissed with the parties agreeing to seek pro-bono assistance. A further application was made on 1 November 2024 to amend the pleadings again to include individual respondents, which was the subject of the hearing.

The court had to determine whether Dr. Moore should be granted leave to amend her pleadings to include additional individual respondents, particularly considering the delay in doing so and whether the proposed amendments adequately pleaded the necessary elements of the claims. The court considered the delay in Dr. Moore’s application to amend and the adequacy of the proposed pleadings. Dr. Moore argued the delay was due to a lack of affordable legal assistance and other personal commitments. Barwon Health contended that the delay was unreasonable and that the proposed pleadings were deficient.

The court found that while delay alone was not sufficient to deny leave, the majority of the claims against the individual respondents could have been brought sooner. Additionally, the proposed pleadings in respect of some of the individual respondents did not adequately plead the required elements of the contravention and intentional participation. Therefore, the court granted leave to amend the pleadings but refused to allow the addition of the individual respondents and certain paragraphs that did not adequately plead the claims. The court also ordered a timeline for filing amended pleadings and further case management.

Orders

Orders of the court

1. Dr Moore is granted leave to file the Proposed Amended Originating Application in the form served on Barwon Health on 30 October 2024, save that:

(a) leave is refused to join the proposed 7 individual respondents;

(b) leave is refused to add paragraphs 4-10 commencing on page 6 of the Proposed Amended Originating Application; and

(c) leave is refused to add paragraphs 11-15 commencing on page 8 of the Proposed Amended Originating Application, insofar as those paragraphs seek relief against the proposed seven individual respondents.

2. Dr Moore is granted leave to file the Proposed Amended Statement of Claim in the form served on Barwon Health on 30 October 2024, save that:

(a) leave is refused to add the proposed seven individual respondents; and

(b) leave is refused to add the following paragraphs: 3, 4, 5, 6, 7, 8, 9, 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).

3. On or before 18 December 2024, Dr Moore shall file and serve an amended originating application and an amended statement of claim in conformity with the grants of leave pursuant to Orders 1 and 2.

4. On or before 24 March 2025, Barwon Health shall file and serve a defence to the amended statement of claim.

5. On or before 7 April 2025, Dr Moore shall file any reply.

6. The matter be listed for a further case management hearing on a date not before 14 April 2025.

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

Background

Background to the litigation

The interlocutory application is otherwise dismissed with no order as to costs.BACKGROUND AND PROCEDURAL HISTORY As outlined above, Dr Moore commenced this proceeding by filing an originating application on 8 April 2022. Dr Moore served her originating application on Barwon Health on 4 August 2022. Dr Moore filed a statement of claim on 11 October 2022. On 18 November 2022, Dr Moore wrote to the Court asking for advice about the procedure to follow to “apply for leave to amend an originating application” and “to apply for leave to amend the statement of claim”. That correspondence did not identify that Dr Moore intended to add the individual respondents. On 8 November 2022, Barwon Health filed its defence, and on 29 November 2022, Dr Moore filed her reply. By operation of r 16.12 of the Federal Court Rules 2011 (Cth), the pleadings closed on 29 November 2022. On 9 December 2022, Dr Moore sent an email to Barwon Health attaching a proposed amended statement of claim and a proposed amended originating application. Dr Moore did not add the individual respondents in those amended pleadings. On 30 January 2023, Dr Moore wrote to Barwon Health advising, amongst other things, that she “proposes to make an application to the Court to be granted leave to file” proposed amended pleadings. On 24 March 2023, Barwon Health’s solicitors sent an email to Dr Moore which stated that if she intended to seek leave to amend her pleadings, she would have to make an application with the Court seeking leave to amend. Before a mediation scheduled for 26 March 2024, Dr Moore wrote to Barwon Health on 22 March 2024. That letter said that Dr Moore intended to amend her pleadings, including to add individual respondents. That was the first occasion that Dr Moore advised that she intended to add individual respondents. On 3 April 2024, Dr Moore served a further proposed amended originating application and a further proposed amended statement of claim, which included additional individual respondents. On 23 April 2024, Dr Moore filed an interlocutory application seeking leave to amend her originating application and statement of claim. I heard that application on 20 June 2024. With the agreement of the parties, I dismissed that application and referred Dr Moore for pro-bono assistance to assist her with the preparation of a draft amended originating application and a draft amended statement of claim. Pro-bono assistance was obtained by Dr Moore and a further proposed amended originating application and statement of claim was provided to Barwon Health on 6 September 2024. In those proposed pleadings, seven individual respondents were joined. Barwon Health opposed that joinder. On 25 October 2024, Dr Moore notified the Court that her pro-bono counsel could no longer continue to represent her. On 1 November 2024, Dr Moore filed the interlocutory application seeking leave to file an amended originating application and statement of claim. That interlocutory application was the subject of today’s hearing. Together with that application, Dr Moore filed an affidavit which included the further Proposed Amended Statement of Claim and Proposed Amended Originating Application. PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I accept, as contended for by Barwon Health, that those paragraphs in respect of the proposed fourth respondent do not, or do not adequately, plead the knowledge of the essential elements of the contravention and the intentional participation by the proposed individual respondent as required by the principles set out in Devine Marine. That shortcoming is repeated throughout paragraphs 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).CONCLUSION In all of those circumstances, leave to file the Proposed Amended Originating Application and Proposed Amended Statement of Claim, insofar as they propose claims against the individual respondents, is refused. COSTS Barwon Health seeks its costs of its Defence dated 8 November 2022; which costs it says are thrown away. It seeks those costs pursuant to s 570(2)(b) of the Act. It submits Dr Moore’s failure to plead her new claims earlier was an unreasonable act that led to those costs being thrown away. Dr Moore submits that she was first represented by a person holding himself out as a lawyer, who was not a lawyer. She then unsuccessfully sought assistance from Justice Connect. She then momentarily had the assistance of pro-bono counsel. She says in those circumstances her actions were not unreasonable. In those circumstances and in all the circumstances of this case I am not satisfied the conduct of Dr Moore was unreasonable for the purposes of s 570(2)(b).

Ratio Decidendi

Legal Principle Established

There was no dispute about those principles.CONSIDERATIONDelay Barwon Health complains of the long delay in Dr Moore’s decision to join the individual respondents. It says despite pleadings having closed in November 2022, and the Applicant foreshadowing proposed amendments on 9 December 2022 and 30 January 2023, the Applicant did not serve the previous proposed amended originating application and statement of claim until 3 April 2024, well over a year later. It says further that that delay has not been adequately explained, particularly when some of the conduct of the proposed individual respondents occurred several years ago. Dr Moore says that the reasons for the delay included: (a)That she was unable to access affordable legal assistance or legal representation,(b)The failure of parties to respond to the Court for further timetabling as instructed,(c)Her commitment in palliating a close friend’s elderly mother at home until her death, and(d)The failure of the respondent to provide employee records which Dr Moore sought to particularise claims, which she thought was desirable. Dr Moore submits that in respect of the claims against the individual respondents, she only became aware of those complaints when she received documentation from Barwon Health in January 2024. Barwon Health responds that Dr Moore had opportunities to obtain that documentation prior to 2024. Dr Moore submits that in an email she sent to Barwon Health on 17 December 2019, she requested “a copy of [her] full employment history” and that that request should have included the documents that she received in January 2024. Dr Moore submits that her request in December 2019 was a request for her employment documents and that Barwon Health did not provide those documents. That request in December 2019 was not made specifically pursuant to the Fair Work Regulations 2009 (Cth), but on 13 December 2023, Dr Moore wrote to Barwon Health formally requesting her employment records pursuant to regulation 3.42 of the Fair Work Regulations 2009 (Cth). That request was more specific than the earlier request of December 2019, and in that letter Dr Moore requested particular categories of documents relating to her employment from between 11 September 2008 and 15 December 2021. I am not satisfied Dr Moore’s request in 2019 answers the complaint of delay made by Barwon Health, where the earlier request was more general in nature than the specific request made in 2023. Dr Moore says further that delay alone is an insufficient basis for refusing leave. I accept Dr Moore’s submission that delay alone is an insufficient basis to refuse leave, however, I do find that the majority of the claims against the individual respondents could have been brought sooner and I weigh that matter with the other matters below.Delay and section 37M Barwon Health further complains that the long and inadequately explained delay in seeking to join and make claims against the individuals respondents demonstrates a disregard of the overarching purpose set out in s 37M of the Federal Court Act 1976 (Cth).