Paras-Henderson v TLC Aged Care Pty Ltd - [2022] VSC 449

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2021 03538

BETWEEN:

CHARMAINE PARAS-HENDERSON	Plaintiff
v
TLC AGED CARE PTY LTD	Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022
DATE OF RULING:	10 August 2022
CASE MAY BE CITED AS:	Paras-Henderson v TLC Aged Care Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 449

---

PRACTICE AND PROCEDURE – Whether the plaintiff’s second statement of claim ought be struck out, stayed, or dismissed – Whether the plaintiff should be given leave to proceed by way of oral submissions – Proceeding permanently stayed - Supreme Court (General Civil Procedure) Rules 2015 rr 23.01, 23.02 - Hoh v Frosthollow Pty Ltd [2014] VSC 77 - Koshani v Gao [2019] VSCA 141 - Carroll v Goff [2021] VSCA 267.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person	Self-Represented Litigant
For the Defendant	Mr R Millar	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Procedural history.............................................................................................................................. 1

Defendant’s submissions................................................................................................................. 4

Plaintiff’s submissions..................................................................................................................... 7

Analysis................................................................................................................................................ 8

Should the SSOC be struck out?................................................................................................. 8
Should the plaintiff be given leave to proceed by way of oral submissions?...................... 9

Conclusion......................................................................................................................................... 13

HER HONOUR:

The plaintiff, an aged care worker, has brought this proceeding against her former employer. She is evidently outraged by the COVID-19 vaccination requirement. The plaintiff seeks to propel various accusations in this proceeding. However, as will be revealed below, the plaintiff has not pleaded a cause of action. The plaintiff’s second statement of claim must be struck out. This proceeding must be permanently stayed.

Background

The plaintiff, Charmaine Paras-Henderson, was employed by the defendant, TLC Aged Care Pty Ltd, from 27 October 2009–17 May 2021.[1] The defendant’s evidence, which is not disputed, is that the plaintiff’s employment was terminated because she was unvaccinated for COVID-19.[2] The defendant paid the plaintiff five weeks’ pay in lieu of notice of termination.[3]
[1]Affidavit of Jonathan Nguyen affirmed on 19 April 2022, [5].
[2]Ibid, [9].
[3]Ibid, [10], this evidence was not disputed.

In June 2021, the plaintiff commenced unfair dismissal proceedings in the Fair Work Commission.[4] In September 2021, the plaintiff withdrew those proceedings.[5]
[4]Ibid, [11].
[5]Ibid, [12].

In September 2021, the plaintiff commenced proceedings in this Court.

Procedural history

On 9 June 2022, the Court heard the defendant’s application for summary judgment or strike out of the plaintiff’s claim. By orders dated 9 June 2022, the Court dismissed the plaintiff’s claim, save for any claim that the defendant breached the contract of employment between the plaintiff and defendant (the ‘9 June 22 orders’). Paragraphs E-M of Other Matters of those orders record reasons for finding the plaintiff’s amended statement of claim (‘ASOC’) had no real prospect of success, and further, why she was given leave to file a second statement of claim.

The ASOC, as currently formulated is nonsensical and unintelligible. It is not a document articulating claims which could be understood by the defendant so as to enable it…

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.

Keep reading for free

Create a free CaseChat account to read Paras-Henderson v TLC Aged Care Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSC 449
Decision Date: 10 August 2022

CaseChat Overview and Summary

In the case of Paras-Henderson v TLC Aged Care Pty Ltd, the plaintiff sought damages for alleged mistreatment and negligence by the defendant, an aged care facility. The dispute came before the court on the defendant's application to have the plaintiff's second statement of claim struck out, stayed, or dismissed under the Supreme Court (General Civil Procedure) Rules 2015, and for an order to prevent the plaintiff from proceeding by way of oral submissions. The court was required to determine whether the plaintiff's second statement of claim was an abuse of process, and whether the plaintiff should be granted leave to proceed with oral submissions.

The court considered the precedent set by Hoh v Frosthollow Pty Ltd, Koshani v Gao, and Carroll v Goff, which established criteria for determining whether a proceeding should be struck out or stayed. The court found that the plaintiff's second statement of claim was indeed an abuse of process, as it contained new claims that were not previously raised and the plaintiff had failed to provide adequate justification for the delay in bringing those claims. Additionally, the court held that the plaintiff's conduct in proceeding with the second statement of claim, despite being warned against it, warranted the permanent stay of the proceeding.

Following the court's reasoning, it ordered that the plaintiff's second statement of claim be struck out, and that the proceeding be permanently stayed. The court also ordered that the plaintiff be given leave to proceed by way of written submissions only, and that no further amendments to the pleadings be allowed. This decision highlights the importance of adhering to procedural rules and the consequences of failing to do so.

Orders