Paras-Henderson v TLC Aged Care Pty Ltd
[2022] VSC 449
•10 August 2022
| 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 |
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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 |
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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.
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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 to plead a defence.
The ASOC has no real prospect of success for the following reasons.
Firstly, it does not contain a cause of action, that is, a legal basis for the claims made by the plaintiff.
Secondly, and relatedly, the ASOC refers to matters which are outside of the jurisdiction of this Court. I refer specifically to the references made to the Fair Work Act (‘FWA’). This Court is not an ‘eligible State or Territory court’ within the meaning of s 12 of the FWA. Unfair dismissal claims and general protection claims must first be made to the Fair Work Commission (‘FWC’): see ss 351, 365, 370, 385, 394 and 539. This Court has no jurisdiction to hear unfair dismissal claims or general protection / discrimination claims. Nor do the fleeting references to the terms of an enterprise agreement create a cause of action: see for instance [7], [9] of the ASOC. I note that here the plaintiff did commence a claim in the FWC but discontinued it: see Exhibit “JN-1” to the Affidavit of Jonathan Nguyen affirmed on 19 April 2022.
Thirdly, there are references to the Commonwealth Constitution. However, those references do not give the plaintiff a cause of action against the defendant. I refer for example to ASOC [11], [18], [32]. The findings of Logan J in Ward v Judicial Registrar Cho [2021] FCA 1661 at [11]-[12] apply here.
Fourthly, the references to the ‘Federal Health Department’ ‘law’ and purported health advice, and the immunisation guidelines and handbook do not give the plaintiff a cause of action against the defendant. I refer, for example to ASOC [5], [12], [19]-[22], [26].
Fifthly, the references to ‘menaces’ in 138.2 of the Criminal Code (contained in s 3 of the Criminal Code Act 1995 (Cth)) are scandalous and a misapprehension of the Act. I refer, for example, to ASOC [13] and [50]. The reference to ‘menaces’ in 138.2 is contained within Part 7.5 of the Code which relates to unwarranted demands of or by Commonwealth public officials: see the offences contained in 139.1 and 139.2.
Sixthly, there is reference in the ASOC, for instance at [2] and [33], to unlawful dismissal on the ground of religious belief or political opinion. However, there is no material fact pleaded to support that. Moreover, there is reference to the Australian Human Rights Commission. That body is a federal commission governed by federal law. This Court does not have jurisdiction to hear complaints made pursuant to the Australian Human Rights Commission Act 1986 (Cth). Those complaints must be initially made to the Commission: see Part IIB, Div 1.
The plaintiff is self-represented. During the hearing it was evident that one of the plaintiff’s grievances is that the defendant unlawfully terminated her employment because she was not vaccinated. There are some fleeting references to breach of a binding agreement with the plaintiff (see for instance ASOC [15]). I will give the plaintiff leave to file a second statement of claim to plead a cause of action for breach of her employment contract. It needs to be intelligible and it needs to set out, briefly, the material facts upon which she relies.
On 10 July 2022, the plaintiff filed a second statement of claim (‘SSOC’). On 14 July 2022, the Court made orders on its own motion (the ’14 July 22 orders’). On the Court’s own motion, a hearing was listed to determine whether the SSOC should be struck out, and whether the proceeding should be summarily dismissed or stayed. The Court listed two questions for determination. Paragraphs A-G of Other Matters of the 14 July 22 orders record the questions and issues for determination.
On 9 June 2022, the Court made orders dismissing the plaintiff’s claims, save for any claim that the defendant has breached the contract of employment between the plaintiff and defendant. The Court made orders giving the plaintiff leave to file and serve a second statement of claim by 4.00pm on 8 July 2022.
At 7.01pm on 10 July 2022, the plaintiff filed a second statement of claim (‘SSOC’). Having read the SSOC, the Court on its own motion will list a hearing to determine whether the SSOC should be struck out, and whether the proceeding should be summarily dismissed or stayed. The Court will hear the parties on the following questions (the ‘questions’).
a.Does the SSOC comply with the 9 June 2022 orders? In particular, does it re-agitate claims already dismissed?
b.Should the SSOC be struck out, or the proceeding stayed or summarily dismissed pursuant to rr 23.01(1) and 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’).
Rules 23.01(1) and 23.02 state:
r 23.01 Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
…
r 23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
The Court will list the questions for hearing on the same date on which the proceeding is currently listed for directions, namely 21 June 2022 at 10.30am.
The material filed by the plaintiff is prolix. Unfortunately it has been prepared by someone who is not a registered legal practitioner.
No party has leave to file any further material prior to the hearing. The parties should be prepared to make oral submissions on the issues above.
On the same date, the Court will hear the parties on the costs of the defendant’s summons filed on 20 April 2022, unless there has been agreement between the parties as to these issues. The question is what costs orders should be made consequential to the ruling on the defendant’s summons? The Court will also hear the parties on the question of what costs orders should be made following determination of the questions in Paragraph B above.
On 21 July 2022, the defendant made submissions on the Court’s two questions. The plaintiff sought leave for Glenn Floyd to appear on her behalf. Leave was not granted. Consequently, the plaintiff sought, and was granted, an adjournment to make submissions on the Court’s two questions. On the same day, the Court made orders (the ’21 July 22 orders’). Paragraph N of the 21 July 22 orders records the following.
The plaintiff should use this adjournment as an opportunity to obtain information directly from the Self-Represented Litigant Co-ordinator and, if she so chooses, as urged by the Court, to obtain independent legal advice. Mr Floyd will not be given leave to appear on 28 July 2022.
On 28 July 2022, the Court heard the plaintiff’s submissions on the two questions, and the defendant’s reply.
The parties’ key submissions are summarised below.
Defendant’s submissions
Firstly, the SSOC suffers from the same defects as the previous statement of claim. The plaintiff was given an opportunity to properly articulate her claim by the Court. To do so, she needed to produce a statement of claim pleading the terms of contract, how it was breached, and how she suffered loss as a result of the breach. Instead, the SSOC is a lengthy, meandering document which refers to all manner of assertions, many that have no bearing on this case.
Secondly, the Court determined on the last occasion that claims made pursuant to the Fair Work Act 2009 cannot be pursued in this Court. It is the incorrect jurisdiction for this claim. The SSOC still includes claims made under the Fair Work Act 2009. For example, paragraphs [4], [7] and [12] of the SSOC all make reference to Fair Work Act 2009 claims or principles. Paragraph [22] of the SSOC cannot be pursued in this Court. It makes references to the Unfair Dismissals Bench book which clearly anticipates a claim under the Fair Work Act 2009. It is still, in essence, a Fair Work Act 2009 claim and cannot proceed in this jurisdiction.
Thirdly, paragraph J of Other Matters of the 9 June 22 orders states that the references to immunisation guidelines or similar policy documents do not give rise to a cause of action. There are still references to those instruments in the SSOC. For example, paragraph [10] of the SSOC makes reference to and analyses the Federal Immunisation Guidelines Criterion. These are impermissible claims that still remain in the SSOC.
Fourthly, the SSOC rests on the premise that the defendant prevented the plaintiff from having the COVID-19 vaccine, based on other examples referred to in the annexures to the SSOC which refer to circumstances where the vaccine was refused. All those examples refer to other people in other jurisdictions. It simply did not happen here. Even if it did, it remains unclear how this gives rise to a cause of action.
Fifthly, even if the claim were to be redrawn to address the breach of contract claim, there is no basis for believing that type of claim would have any prospect of success. The plaintiff received payment in lieu of notice of termination. So, if everything the plaintiff says gave rise to a claim in wrongful dismissal for breach of contract, then she is still left with the proposition that the remedy would be payment of damages in lieu of notice. However, that has already been paid, so the claim is destined to fail. The whole proceeding goes nowhere.
The problems with the SSOC are not simply about drafting: the claim is fundamentally flawed. The plaintiff has been given an opportunity to make matters right and file the SSOC. She could have sought legal assistance to help in that process. Ultimately, if a litigant comes to Court and invokes the jurisdiction of the Supreme Court of Victoria, they must have a coherent claim. The claims in the SSOC do not meet that test. There is no utility in yet another statement of claim being prepared.
The defendant sought orders for summary judgment pursuant to the Civil Procedure Act 2010 (‘CPA’) on the basis that the claim cannot succeed. The defendant also relies on r 23.01 of the Rules. The power pursuant to r 23.01 may be exercised if a proceeding is scandalous, frivolous or vexatious or an abuse of process of the Court. The SSOC is scandalous, frivolous or vexatious. It should not be permitted to proceed. The SSOC includes many references to draconian measures and makes quite extraordinary allegations against the defendant. For example, paragraph [4(ii)] of the SSOC draws an analogy to murder. This is scandalous material. It should not be included in a document filed with the Court and should not be permitted to proceed through to hearing. The matter ought be summarily dismissed or, subject to the Court’s discretion, permanently stayed to bring this proceeding to an end. There is no utility in other lesser measures such as striking out the SSOC and allowing the proceeding to remain on foot.
In reply: the plaintiff says this is not a claim brought under the Fair Work Act 2009, but a claim under contract. However, the SSOC is infused with references to the Fair Work Act 2009. For example, paragraphs [12], [21] and [22] all make reference to the Fair Work Act 2009. It is not a claim for breach of contract, as directed.
In reply: to the extent that the plaintiff has explained her claim in contract today, saying that there was no lawful and reasonable direction given by the defendant, the defendant says this is wrong. There was no unlawful or unreasonable direction, however, that is an issue for evidence. Ultimately, the argument presented goes nowhere because this was not a summary dismissal, it was a dismissal on notice. The letter of termination is contained in Exhibit JN-1 to the affidavit of Jonathan Nguyen affirmed on 19 April 2022. It clarifies that employment was terminated on notice. If the plaintiff wished to pursue a claim where she alleged the reasons for the defendant providing her notice were unfair, she should have pursued a claim in the Fair Work Commission. This is a charitable approach to the SSOC which fails to yield a clear claim for breach of contract. The time has come to bring this proceeding to an end.
Plaintiff’s submissions
The plaintiff says, firstly, that her case should be allowed to proceed, relying on the autochthonous expedient. The SSOC does not argue claims pursuant to the Fair Work Act 2009. As noted on page two of the SSOC, those claims are nugatory. The Fair Work Act 2009 claims are immaterial. The only claim is breach of contract. There is no reliance on industrial breaches.
Secondly, the plaintiff says her contract of employment with the defendant did not include any express or implied terms requiring her to undertake any medical treatments or COVID-19 vaccinations. She says that the direction for her to undertake the COVID-19 vaccination breaches the contract.
Thirdly, the plaintiff says that there is no statutory power that gives an employer the authority to require employees to be vaccinated. She says that it is an unlawful directive and constitutes criminal breaches of health practitioner law. Further, the plaintiff says that it is unlawful for any company, organisation, staff member or any recognised medical practitioner to issue a non-negotiable directive to any person to undertake any medical treatment or COVID-19 vaccination. She says that the defendant breached the employment contract by issuing an unlawful directive where no such power to make the directive exists.
Fourthly, the plaintiff says that the defendant breached the contract by requiring the plaintiff to undertake an experimental COVID-19 vaccination. She says that it constitutes unlawful employer manipulation and coercion under Federal health guidelines. The plaintiff says that the SSOC includes 13 affidavits of independent injecting practitioners who refused injections.
Fifthly, the plaintiff says that she has always known her rights and that she did not refuse the COVID-19 vaccination. She says she made a few bookings with the Northern Hospital. She researched her rights and heard lawyers speak about rights.
Sixthly, the plaintiff says that if she had participated in a forced vaccination then she would have been an accomplice in health practitioners breaking the law by giving her a vaccination in circumstances where she alleges that she was being coerced and threatened with termination.
Seventh, the plaintiff says that the Government cannot impact on an organisation’s discrete choices. She says that the unlawful vaccination directives are a breach of contract.
Eighth, the plaintiff says her standing is established because she suffered a personal injury as a result of the termination of her employment. She says that this entitles her to bring an action to redress. She says that the certificate of separation states she was terminated due to employee misconduct and that was not the case at all. The plaintiff says that she was not guilty of misconduct.
Analysis
The SSOC does not comply with the 9 June 22 orders. It seeks to re-agitate claims already dismissed. It does not plead a breach of contract claim.
Should the SSOC be struck out?
I adopt the summary of principles given by Derham AsJ in Hoh v Frosthollow Pty Ltd.[6]
[6][2014] VSC 77, [11]-[21] (‘Hoh v Frosthollow’).
The SSOC must be struck out.
Firstly, it is not limited to pleading a breach of the employment contract. Indeed, it does not plead such a claim at all. The terms of the contract of employment and the alleged breach are not pleaded. Nor are the material facts.
Secondly, similar to the ASOC, it is nonsensical and unintelligible. These matters are made worse by the annexing of affidavit material. Attachment B of the SSOC purportedly contains 13 affidavits of former employees from different industries allegedly dismissed on the basis they were unvaccinated for COVID-19. The affidavits purport to exhibit evidence from health practitioners about the refusal to administer injections, despite many of the health practitioners refusing to sign the document evidencing refusal. This purported evidence does not amount to material facts in support of the plaintiff’s claim for breach of the employment contract. The purported affidavits do nothing to advance such a claim.
Thirdly, the SSOC contains scandalous material. I need not reiterate that here.
The question then is whether the plaintiff should be given leave to file a third statement of claim. This is not a case where there are defects curable by amendment. There is no cause of action pleaded in the SSOC. Moreover, despite the 9 June 22 orders, the SSOC suffers from similar defects to the ASOC. For example, the plaintiff’s claim in the SSOC still rests on immunisation guidelines or similar policy documents which were struck out by the 9 June 22 orders.
There is no utility in giving leave for the plaintiff to file a third statement of claim. Having heard from the plaintiff, and read her materials, I apprehend it would result in a similar document to the SSOC. In those circumstances, it would cause further time and expense to be unnecessarily incurred by the defendant. It would cause a waste of Court resources. Indeed, it would be inconsistent with the overarching purpose of the CPA, namely the just, efficient, timely and cost-effective resolution of the real issues in dispute.
Should the plaintiff be given leave to proceed by way of oral submissions?
The plaintiff sought leave to proceed by way of oral submissions if the SSOC was struck out. I decline to give such leave.
Firstly, the duties of the Court do not extend so far as to formulate the self-represented litigant’s case. I gratefully adopt the summary of principles given by the Court of Appeal in Koshani v Gao.[7]
A trial judge is under a duty to ensure that a trial is conducted fairly and in accordance with law. Where a litigant is unrepresented, a trial judge is required to give ‘proper assistance’ to that litigant. The scope of that assistance will depend on the particular litigant and the nature of the case, but can never involve the judge becoming the litigant’s advocate. The extent of a judge’s intervention must stop short of demonstrating that he or she is no longer neutral.[8]
[7][2019] VSCA 141.
[8]Ibid, [22].
Secondly, the Court’s obligation to ensure a fair hearing does not oblige the Court to allow a matter to proceed without pleadings. Fairness is concerned with avoiding practical injustice. I gratefully adopt the summary of principles given by the Court of Appeal in Carroll v Goff.[9]
[9][2021] VSCA 267.
It is the fundamental obligation of every court to ensure a fair hearing for the parties before it, since procedural fairness is ‘an essential attribute of a court’s procedure’. This right is firmly established at common law and is also protected by s 24(1) of the Charter [of Human Rights and Responsibilities], which relevantly provides as follows:
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Fairness is not an abstract concept, however, but is essentially practical, since the concern of the law is to avoid ‘practical injustice’. Thus in two decisions of this Court, the following principles have been distilled:
…
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
·the nature and complexity of the issues in dispute;
·the nature and complexity of the submissions which the party wishes to advance;
·the significance to that party of an adverse decision; and
·the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As [the Court] said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.
The statutory framework governing the proceeding is also relevant to the question of ‘reasonable opportunity’. Like all civil proceedings, the application for probate was governed by the provisions of the CPA. Under the CPA, the Court is required to give effect to the ‘overarching purpose’, which is to facilitate ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute.’ This very important statutory directive recognises the fact that litigation occurs within a context wherein resources are finite and — to that end — recognises the importance of case management principles.
Specifically, the CPA requires the Court to deal with a civil proceeding in a manner proportionate to the complexity of the issues in dispute (s 9(1)(g)(i)). The Court may also actively case manage civil proceedings by deciding which issues need full investigation and a ‘hearing’, or which may be disposed of summarily (s 47(3)(c)). It may also give orders it considers appropriate to further the overarching purpose in relation to the conduct of the hearing generally (s 49), including whether evidence in chief should be given orally or otherwise (s 49(3)(j)).
These principles are also reflected in r 34.01 of the Rules which states that, at any stage of a proceeding, the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.[10]
[10]Ibid, [85]-[89] (footnotes omitted).
The plaintiff did not comply with the direction to limit the SSOC to a breach of employment contract claim. Given the history of the proceeding to date, and having heard the plaintiff’s submissions, I do not consider the plaintiff lacks capacity to articulate and formulate a cause of action. The circumstances are that she has used the ASOC and SSOC as a vehicle to make a range of accusations regarding the COVID‑19 health directions rather than articulate a cause of action. I apprehend she would act similarly if given the opportunity to proceed by way of oral submissions.
Thirdly, the Supreme Court is a Court of pleadings. The Rules require pleadings, and contain the requirements of pleadings: see for instance order 13 of the Rules.[11] I accept the CPA gives the Court wide powers as to how to direct proceedings, however there is no good reason to depart from the Rules in the circumstances here.
[11]Rules, rr-13.01-13.15; Hoh v Frosthollow.
Fourthly, there is no practical injustice in staying the plaintiff’s claim. The plaintiff is seeking approximately $3.5 million in damages for, amongst other things, financial loss of earnings, loss of esteem, and ‘suffering pain and distress of extreme emotional anxiety and trauma’. The defendant deposes, and the plaintiff does not dispute, that the plaintiff was paid in lieu of notice of termination. The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), particularly ss 327 and 328, governs personal injury claims for damages arising out of employment. Such claims cannot be made by this proceeding. I will not address the other remedies sought. Some are nonsensical. Others are misconceived.
Finally, given that the plaintiff has failed to plead a breach of contract claim and accordingly there is no substantive finding regarding such a claim, the appropriate order is not to dismiss the proceeding, but rather to make orders it be permanently stayed.
Conclusion
I will make orders striking out the SSOC. I will give the parties an opportunity to each make short written submissions on costs. I will then make orders on costs and permanently stay this proceeding.
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