Picos v HealthEngine Pty Ltd & Anor
[2014] FCCA 640
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICOS v HEALTHENGINE PTY LTD & ANOR | [2014] FCCA 640 |
| Catchwords: PRACTICE AND PROCEDURE – Application for hearing by video-link – whether to grant application for hearing by video-link of five day matter – principles. PRACTICE AND PROCEDURE – Application for change of venue – whether to change venue from Perth to Sydney – factors for consideration. PRACTICE AND PROCEDURE – Application by applicant for leave for a Registrar to enter default judgment on claim in excess of $127 million – principles to be applied. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 344, 349, 352, 355 |
| Australian Securities & Investments Commission v Rich [2004] NSWSC 467 Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd (2003) 58 IPR 69; [2003] FCA 374 B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Hoskin v Ernst & Young Services Pty Ltd [2010] FMCA 947 KM & A Chadwick Pty Ltd v Yeung [1995] FCA 354 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 Matthews v Hargreaves (No.2) [2010] FMCA 933 McDonald & Anor v Federal Commissioner of Taxation (2000) 44 ATR 226; [2000] FCA 577 National Mutual Holdings Pty Ltd & Ors v Sentry Corporation & Anor (1988) 19 FCR 155 Purnell Motors Pty Ltd v Jones [2014] FCCA 620 R v Goldman(2004) 148 A Crim R 40; [2004] VSC 165 Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495 Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 The Australian Steel Company (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69; [2003] FCA 374 Versace v Monte [2001] FCA 1454 WG & B Manufacturing Pty Ltd v Telsa Farad Pty Ltd [1999] FCA 859 WH Books Ltd & Ors v Miller & Anor (1998) 41 IPR 364 Wu v Avin Operations Pty Ltd ACN 076956913 [2006] FCA 36 |
| Applicant: | CONNIE PICOS |
| First Respondent: | HEALTHENGINE PTY LTD |
| Second Respondent: | MARCUS TAN |
| File Number: | PEG 370 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 2 April 2014 (by video-link to Sydney) |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First and Second Respondents: | Mr J Blackburn |
| Solicitors for the First and Second Respondents: | DLA Piper |
ORDERS
The applicant’s application in a case filed 31 March 2014 be dismissed.
The applicant’s oral application for leave to have a Registrar enter default judgment against the respondents be dismissed.
The Reasons for Judgment on the applicant’s application in a case filed 31 March 2014 and the applicant’s oral application for leave to have a Registrar enter default judgment against the respondents be published from Chambers at a later date.
Costs, if any, of the applicant’s application in a case filed 31 March 2014 and the applicant’s oral application for leave to have a Registrar enter default judgment against the respondents, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 370 of 2013
| CONNIE PICOS |
Applicant
And
| HEALTHENGINE PTY LTD |
First Respondent
| MARCUS TAN |
Second Respondent
REASONS FOR JUDGMENT
Orders previously made
On 2 April 2014 the Court made the following orders in this matter:
1.The applicant’s application in a case filed 31 March 2014 be dismissed.
2.The applicant’s oral application for leave to have a Registrar enter default judgment against the respondents be dismissed.
3.The Reasons for Judgment on the applicant’s application in a case filed 31 March 2014 and the applicant’s oral application for leave to have a Registrar enter default judgment against the respondents be published from Chambers at a later date.
4.Costs, if any, of the applicant’s application in a case filed 31 March 2014 and the applicant’s oral application for leave to have a Registrar enter default judgment against the respondents, be reserved.
(“2 April 2014 Order”).
The following are the Reasons for Judgment referred to in order 3 of the 2 April 2014 Orders.
Application in a case and associated correspondence
On Sunday, 30 March 2014 at 8.28am the applicant, Connie Picos (“Ms Picos”) sent an email to the [email protected] email box as follows:
I refer to the above matter PEG370/2013.
I am the Applicant. I am in Sydney. I wish to participate in the hearing commencing 7 April 2014 via video link.
Please confirm Judge Lucev will allow the matter to be conducted by video link.
Please further confirm that the necessary booking have [sic] been made, per the below procedure guidelines.
Making arrangements for video link
A request should be made at least 7 days prior to the scheduled event to allow for the booking of the necessary equipment.
Requests to use video or audio links should be directed to the associate of the judge having control of the matter. Requests can be made by phone or in writing.
Parties can call 1300 352 000 if they require contact details for associates.
A party requesting the use of video link should have the capacity to advise of the following detail:
(a) The full title including the number of the matter;
(b) The address and ISDN numbers of the link venues;
(c) The reasons why such a course is desirable;
(d) The nature of the evidence;
(e) The number of witnesses to be examined;
(f) The expected duration of the link; and
(g) In the case of submissions, the expected duration of the submissions.
The party booking the link with the court is responsible for ensuring that all the appropriate material to administer the oath and copies of exhibits are available during the video link.
Upon approval of the request the associate or deputy associate to the judge will make the bookings necessary to ensure that the video equipment is available
My telephone number is … [mobile telephone number].
(“30 March 2014 Email”)
Apart from the full number and title of the matter none of the other required detail for a video link hearing booking was included in the 30 March 2014 Email.
On 31 March 2014 the deputy associate to Judge Lucev responded to Ms Picos’ as follows:
The Court does not accept your request for the hearing, commencing 7 April 2014 at 10.15am, to be conducted by video-link. If you wish to make a further request the Court requires you to file and serve an application in a case with supporting affidavit addressing any relevant factors.
Further, please ensure all communication to the Court is also sent to the respondents.
Subsequently Ms Picos filed her application in a case to appear by video supported by affidavit on 31 March 2014 (“Ms Picos’ March 2014 Email”). The matter was listed for hearing and the deputy associate to Judge Lucev sent the following email to the parties on 1 April 2014:
On 31 March 2014 the applicant filed an application in a case seeking leave to appear in the substantive hearing, commencing 7 April 2014, by video-link from Sydney, or alternatively to have the matter heard in Sydney. Subsequently, this matter has been listed for an interim hearing at 9am WST (12pm EST) on 2 April 2014, with the applicant to appear by video-link from Sydney.
Please find attached notice of listing.
On 1 April 2014 Ms Picos replied to the deputy associate to Judge Lucev as follows:
I strongly object to having to appear tomorrow. I request that the matter be dealt with by way of written submissions. At this stage, I have no further submissions to make on the requested orders: I rely on the Application and Affidavit of 31 March 2014 together with my Affidavit in support of venue.
If the Respondents seeks costs for the request of 31 March 2014 then I will make further written submissions on that point only.
Please advise if my objection is allowed.
On 1 April 2014 the deputy associate to Judge Lucev responded to Ms Picos’ 1 April 2014 email as follows:
The interim hearing will proceed tomorrow on 2 April 2014 at 9am WST (12pm EST). The Court will not determine your application in a case by way of written submissions. Whether you attend the interim hearing is entirely a matter for you, but the interim hearing will proceed, and if you do not attend the Court may make orders in your absence.
On 1 April 2014 a further email was sent by Ms Picos as follows:
SUBMISSION
All are on notice:
1. Each Respondent is in default.
2. Each Respondent has not satisfied my claim for $127,514,421 plus interest from 19 September 2013.
3. Tomorrow at the hearing I will seek judgement on default.
4. The defaults include:
A. The claim was opened in the Federal Court of Australia on 19 September 2013 by way of application under the Fair Work Act only.
B. The Respondents did not file any defence as required, as stated in my Affidavit in support of venue dated 12 December 2013.
C. DLA Piper successfully misled the Court on 11 October 2013 as to the Fair Work procedure. The Respondents forever remain in default of my claim commenced on 19 September 2013.
D. Later, each Respondent did not file a Defence by 15 November 2013 (around 2 months later)
F. Each Respondent collectively provided a copy of the Defence to me by email on 18 November 2013 from DLA Piper and out of time, which I do not accept.
G. Each Respondent did not file and serve an outline of contentions within time as ordered by the Court on the previous occasion.
Note: each person is liable for reckless damage.
If DLA Piper/the Respondents wish to defend the proceedings diligently, which is impossible, it is appropriate that they lodge a notice of appeal from judgment on default.
Applications in a case and affidavit
The application in a case made by Ms Picos and filed electronically on 31 March 2014 sought orders as follows:
1.Connie Picos, the applicant, be permitted to appear in matter PEG 370/2013 by video-link from Sydney, New South Wales.
2.Alternatively, the matter PEG 370/2013 be heard in Sydney, New South Wales.
The application in a case was supported by Ms Picos’ March 2014 Affidavit. Its terms are as follows:
I Connie Picos of … [street address in] Narellan NSW and venture capitalist affirm:
1.I am the applicant.
2.I am a resident of Sydney, NSW.
3.I wish to appear in matter PEG370/2013 by video link from Sydney.
4.On 5 February 2014, Judge Lucev said during the directions hearing where I appeared via telephone that I may participate in the final hearing by video link. I expressly declined the offer on the basis of wanting to appear personally in Perth (I believe video link to be a disadvantage for the applicant) however, as at 31 March 2014 I am in Sydney and unwell. At this stage, it is not possible for me to travel to Perth on 7 April 2014 to participate in the proceedings personally.
a. I annex my current medical certificate for review on 30 April 2014. as Annexure A
5.Alternatively, I wish the matter PEG370/2013 to be heard in Sydney. For this request I rely on my affidavit prepared and filed in the Court on 13 December 2013 on the same point and titled Affidavit in support of venue, for which I subsequently withdrew the application in order to allow the matter to be set down for final hearing expeditiously, after a delay of around 6 months.
Annexed to Ms Picos’ March 2014 Affidavit is a “WorkCover NSW certificate of capacity” (“WorkCover Certificate”) dated 3 March 2014. The WorkCover Certificate sets out Ms Picos’ details, including a PO Box in the Queen Victoria Building as her address, and gives her job title as Finance and Operations Manager, and her employer as the first respondent, HealthEngine. In the part to be completed by the treating doctor or treating specialist medical practitioner the diagnosis of the work-related injury is said to be an adjustment disorder with mixed anxiety and depression. The date of the injury is said to be 3 July 2013, but that is a patient-stated date. It is said that Ms Picos first attended the medical practice concerned on 3 February 2014, and that the injury or disease is consistent with the patient’s description of the cause, and is related to work by reason of “Excessive workload, Moving Office”. The management plan is said to be of long-term duration, with Ms Picos to see a psychologist and an injury management adviser. Ms Picos is said to have no current work capacity for any employment from 3 March 2014 to 30 April 2014. 30 April 2014 is the next medical review date.
The WorkCover Certificate bears an indecipherable signature (dated 3 March 2014) and no name is attributed to, nor are qualifications given for, the individual who has apparently signed, purportedly as the treating medical practitioner. The medical practice is named as the Fountain Medical Centre Potts Point, with an address at 5 Ward Avenue in Potts Point (an inner Sydney suburb).
Litigation history prior to the application in a case
Ms Picos was employed by HealthEngine as Finance and Operations Manager with effect from 27 June 2013 and alleges that her employment was terminated by HealthEngine on 20 August 2013.
Ms Picos commenced this matter by way of an originating application filed in the Federal Court of Australia in Perth on 19 September 2013.
Statement of Claim
What became the Statement of Claim was filed on 16 October 2013.
The Statement of Claim alleges:
a)that Ms Picos was dismissed in contravention of s.352 of the Fair Work Act 2009 (Cth) (“FW Act”) (dismissal for temporary absence for illness or injury) on 20 August 2013: Statement of Claim, para.10;
b)that HealthEngine and the second respondent, HealthEngine’s managing director, Dr Marcus Tan (“Dr Tan”) took adverse action against Ms Picos including:
a.dismissing Connie Picos around 20 August 2013;
b.injuring Connie Picos in her employment June 2013 to August 2013, comprising:
i.altering responsibilities, providing a much lower level of responsibilities;
ii.grossly extending work hours;
iii.having Connie Picos work on Fridays, Saturdays and Sundays;
iv.failing to offer Connie Picos the option of full-time (paid) employment;
v.having Connie Picos responsible to …[name], practice support manager and not Dr Marcus Tan, Chief Executive Officer;
vi.having Connie Picos liaise with Natali Bosnjak, bookkeeper and registered BAS agent and not an external accountant;
vii.having Connie Picos reconcile unethical financial transactions and/or with Natali Bosnjak;
viii.having Connie Picos perform the role of Kelly Lawrence, executive assistant, whilst Kelly Lawrence temporarily moved to Los Angeles and acted as a virtual assistant;
ix.Jake Howard, sales advisor, hiring Colm Mooney without reference checks and without reference to Connie Picos who was initially responsible for managing human resources;
x.Jake Howard, sales advisor, terminating Colm Mooney after 2 days of work for taking extended bereavement leave;
xi.requiring Connie Picos to rectify 900 erroneous invoices setup by Catherine Sinderman, including on Saturday and Sunday;
xii.failing to pay Connie Picos any performance incentives;
xiii.failing to offer and/or provide Connie Picos equity under the employee share plan;
xiv.advising that the First Respondent would not be profitable until 2015;
xv.failing to offer flexible remuneration;
xvi.breaching mutual trust and confidence, as described above and below;
xvii.having Connie Picos draft several, individual, contractor agreements, without prec[e]dent, including during the 2013 end of financial year;
xviii.failing to manage the illness of Natali Bosnjak, bookkeeper to the First Respondent and Second Respondent, personally, during 2013 and end of financial year;
xix.representing that Connie Picos may have to [be] relocated to Sydney or Melbourne to work for the First Respondent;
xx.physically injuring Connie Picos;
c.altering the position of Connie Picos to her prejudice, as described above; and
d.discriminating between Connie Picos and Catherine Sinderman, stating that Catherine Sinderman was not expected or required to work overtime as Catherine Sinderman is a single mother. (Statement of Claim, para.11(a)-(d)).
c)further adverse action as follows:
e.Connie Picos had workplace rights, including:
i.to safety;
ii.reasonable and legal working hours;
iii.payment for work; and
iv.trust and confidence
f.Connie Picos commenced employment with the First Respondent on 27 June 2013, pursuant to a seek.com.au application, providing her CV (key skill “maximising potential income”), connecting with Dr Marcus Tan on Linkedin and interviews. The First Respondent and Second Respondent represented that Connie Picos would be liaising with an external accountant to close the end of financial year for 2013; that the First Respondent would be a billion dollar company like Carsales.com.au; that Connie Picos would be a key part of the management team, together with Marcus Tan, Adam Yap and Darius Wey. There was not an external account closing the end of financial year. There was a Natali Bosnjak bookkeeper, who for example, reconciled ~$200,000 of payment in June 2013, following a $10.4 million investment from Telstra and Seven West Media, to officers and stakeholders of the company for invoices dating back to 2012, including Marcus Tan, Adam Yap and Andrew Larsen. Connie Picos was used for the end of financial year; involved a “co-fuffle”. The First Respondent and the Second Respondent had Connie Picos perform work in excess of 60 hours per week Monday to Sunday from Thursday, 27 June 2013 (commencement date, pro rate in week 1). Connie Picos was injured. Connie Picos notified Dr Marcus Tan of her intention to claim compensation on 15 August 2013. Dr Marcus Tan required Connie Picos to attend work on 19 August 2013 and 20 August 2013. Dr Marcus Tan terminated the employment of Connie Picos for HealthEngine Pty Ltd around 20 August 2013. Further, Dr Marcus Tan, Medical Director, advised Connie Picos that the business would not make a profit until 2015, that she was overqualified, that she should seek employment elsewhere and that he was very well connected and would support her to do so. (Statement of Claim, para.12(e)-(f)).
which are said to be contraventions of s.340 of the FW Act.
In the Statement of Claim it is also asserted that:
a)HealthEngine exerted undue pressure on Ms Picos to agree to deduction from amounts payable to Ms Picos for the performance of work in contravention of s.344 of the FW Act: Statement of Claim, para.14;
b)HealthEngine and Dr Tan coerced Ms Picos not to exercise her workplace rights including rights to a safe working environment, reasonable working hours, legal working hours, payment, opportunities, personal (sick) leave, workers’ compensation, and altered Ms Picos’ position, and harassed her, in contravention of s.344 of the FW Act Statement of Claim, para.15;
c)HealthEngine and Dr Tan knowingly and or recklessly made false or misleading representations about Ms Picos’ workplace rights including:
g.representing that Connie Picos had to work from home on 1 August 2013, despite being ill and advising Marcus Tan of illness;
h.representing that Connie Picos work from home on 2 August 2013 on Connie Picos’ day off;
i.representing that Connie Picos work on Saturday, 3 August 2013 and Sunday, 4 August 2013, and that it would “be great” to know the revenue for July on Monday;
j.representing that the First Respondent operated with a “start up culture” and not a safe work environment;
k.representing that it was appropriate for Natali Bosnjak, bookkeeper, to work on the 2013 end of financial year in place of an external accountant;
l.representing that it was legitimate for Connie Picos to be responsible for an end of financial year (2013) having commencing employment on 27 June 2013 (3 days prior);
m.representing that it was perfectly safe and acceptable to relocate the office of the First Respondent on 1 July 2013, during the end of financial year accounting;
n.representing that the Second Respondent would put in place “alternative arrangements” for Connie Picos on 15 August 2013 and not commence a workers’ compensation process; and
o.other representations as set out in other sections of this Application. (Statement of Claim, para.16(g)-(o)).
presumably in contravention of s.349 of the FW Act; and
d)HealthEngine and Dr Tan contravened s.355 of the FW Act (coercion by allocation of duties to a particular person) by taking action against Ms Picos by paying a performance bonus to another employee in August 2013 with the intention to allocate duties and responsibilities and low-level work to Ms Picos, who was the finance and operations manager of HealthEngine: Statement of Claim, para.17.
Interlocutory applications in the Federal Court
On 14 October 2013, 25 November 2013 and 28 November 2013 Ms Picos filed interlocutory applications:
a)for default judgment, or judgment;
b)for change of venue, from Perth to Sydney;
c)to remove DLA Piper as solicitors for HealthEngine and Dr Tan;
d)to ban Dr Tan from managing HealthEngine; and
e)for payment to Ms Picos’ pending determination of the litigation.
In support of her various interlocutory applications Ms Picos filed affidavits, as follows:
a)on 14 October 2013, an affidavit plus annexures, running to more than 30 pages;
b)on 16 October 2013, of 4 pages;
c)on 25 November 2013, of 5 pages;
d)on 28 November 2013, plus annexures, of 20 pages.
The application for payment pending determination of the litigation, and an oral application for summary judgment, were dismissed by the Federal Court on 18 October 2013: Transcript, 18 October 2013, page 14.
On 18 October 2013 orders were also made for HealthEngine and Dr Tan to file and serve their Defences by 15 November 2013, and for Ms Picos to file and serve any Reply by 5 December 2013, with the matter to be listed for a further directions hearing on 6 December 2013.
Defence
On 15 November 2013 HealthEngine and Dr Tan filed a Defence denying liability, running to some 17 pages.
The Defence:
a)denies significant aspects of the factual matrix claimed by Ms Pecos, including:
i)denying that Ms Picos was required to work in excess of 60 hours per week, and saying further that she had a contract which required her to work 4 days a week: Defence, para.6(a) and (c);
ii)denying that Ms Picos was required to attend work on 19 or 20 August 2013, and saying that she sent a text message on 16 August 2013 (a Friday) to Dr Tan indicating that she would be back on Monday, 19 August 2013: Defence, para.6(f);
iii)denying that the termination occurred on 20 August 2013, but saying that it was effected in writing on 22 August 2013, with a week’s pay in lieu of notice: Defence, para.6(i); and
iv)denying that Ms Picos’ working hours were excessive: Defence, para.7(a);
b)denies that HealthEngine, or Dr Tan acting on behalf of HealthEngine, dismissed Ms Picos because of or for reasons including a temporary absence from work because of illness or injury (contrary to s.352 of the FW Act), and further says that the applicant did not inform Dr Tan on the telephone that she was ill or why she was going home; that she had previously behaved inappropriately towards other staff; shown a lack of respect to staff without university degrees; had left work abruptly and without notice on 14 August 2013, following poor performance during August for which she had blamed other staff; that she had indicated an unwillingness to perform duties she was employed to perform, and had been counselled in relation to her attitude towards other staff and her work, by Dr Tan: Defence, para.10(b) and (e)(i) and (ii);
c)says that a discussion which took place on 20 August 2013 involving Ms Picos and Dr Tan concerned Ms Picos’ attitude towards her work and colleagues, and it was that attitude, together with her inability to get along with other staff and work as part of a team, her unwillingness to perform duties for which she was employed to perform, her continuing to hold attitudes towards other staff and her work despite counselling, and her poor performance, that led Dr Tan, acting on behalf of HealthEngine, to terminate Ms Picos’ employment, in writing, on 22 August 2013: Defence, paras.10(i)(i), (iv) and (v), (l) and (m) and 11(a);
d)denies injuring Ms Picos in her employment by altering Ms Picos’ position to her prejudice, either as pleaded, or otherwise, and in relation thereto provides particulars, which show the extent of the joinder of issues in these proceedings, as follows:
i.the respondents provided the applicant with duties and responsibilities commensurate with her job description as set out in the Seek advertisement which led the applicant to apply for the position. The advertisement indicated, among other things that the first respondent sought a person with “extensive bookkeeping experience”. The advertisement did not mention business development. The respondent, through the second respondent and Rachel White (White), the first respondent’s Chief Financial Officer, explained to the applicant during her interviews that the job involved a large bookkeeping component. The only changes to the applicant’s duties were the result of requests by her for additional responsibilities and attempts by the respondent to assist her.
ii.the respondents did not extend the applicant’s working hours grossly or at all. …;
iii.the respondents did not require the applicant work on any Friday, Saturday or Sunday. …;
iv.the respondents did not “fail to offer” the applicant the option of full-time employment. The question of full time employment did not arise. … Further and in the alternative, had the respondents failed to offer the applicant the option of full-time employment it would not have constituted an injury to the applicant or prejudicial alteration to her position
v.the applicant was not responsible to Sindermann. The applicant was responsible to White and the second respondent;
vi.the applicant was required to liaise with Natali Bosnjak (Bosnjak) as part of a handover of duties. The second respondent explained this requirement to the applicant when interviewing the applicant for employment. The requirement did not constitute an injury to the applicant or prejudicial alteration to her position;
vii.the respondents did not “have” or require that the applicant reconcile unethical financial transactions either alone or with Bosnjak or any other person;
viiithe respondents did not “have” or require that the applicant perform Kelly Lawrence’s role as executive assistant;
ix.Jake Howard (Howard) is and was the first respondent’s Sales Lead and responsible for managing the sales team and hiring sales staff. Howard’s hiring of Mooney without reference to the applicant did not constitute an injury to the applicant or prejudicial alteration to her position. The applicant was given limited human resources duties in her first month of employment so that she could focus on accounting and finance tasks;
x.Howard’s termination of Mooney’s employment was done in consultation with the applicant and did not constitute an injury to the applicant or prejudicial alteration to her position;
xi.the applicant was responsible for invoicing, a function previously performed by Sindermann. Following the handover of this function from Sindermann to the applicant errors occurred as a result of which it was necessary for the applicant to rectify a number of invoices. The respondents did not require the applicant to work on Saturday or Sunday to perform this work … That it was necessary for the applicant, as part of her role, to rectify the invoices did not constitute an injury to the applicant or prejudicial alteration to her position.
xii.the applicant's employment contract did not entitle her to performance incentives. The absence of any entitlement to performance incentives did not constitute an injury to the applicant or prejudicial alteration to her position;
xiii. the first respondent did not have an employee share plan at the time the applicant was employed. Nor did the applicant's employment contract entitle her to equity under an employee share plan. The absence of any such entitlement did not constitute an injury to the applicant or prejudicial alteration to her position;
xiv.second respondent advised the applicant at the 20 August Meeting that the first respondent was not projecting to be profitable until after the 2015 financial year. The same did not constitute an injury to the applicant or prejudicial alteration to her position;
xv.the applicant's employment contract did not entitle her to “flexible remuneration", whatever is meant by that term, but to an annual salary of $70,000 and superannuation. Any failure by the respondents to offer the applicant " flexible remuneration" did not constitute an injury to the applicant or prejudicial alteration to her position;
xvi.the respondents did not breach any implied term of mutual trust and confidence as alleged or at all;
xvii.the applicant was required to draft contractor agreements as part of her job. The same did not constitute an injury to the applicant or prejudicial alteration to her position;
xviii.the respondents were not responsible for any illness to Bosnjak. Bosnjak was an external bookkeeper and was not employed by the first respondent. Nor in any event would any failure by the respondents to “manage the illness of Bosnjak” have constituted an injury to the applicant or prejudicial alteration to her position;
xix.the respondents did not represent to the applicant that she may have to relocate to Sydney or Melbourne to work for the first respondent. The second respondent informed the applicant, in an email offering her the position on 25 June 2013, that the position would be based in the first respondent's Leederville office from 27 June 2013 and then at Osborne Park from 1 July 2013;
xx.the respondents did not physically injure the applicant.
(Defence, para 11(b) Particulars i.-xx.).
e)denies that adverse action was taken against Ms Picos by discriminating between her and another employee: Defence, para.11(c);
f)denies that adverse action was taken against Ms Picos by reason of any workplace rights that she had: Defence, para.12(a)(iii), and further denies that representations that HealthEngine would be a billion company like Carsales.com.au, that the applicant would be a key part of the management team, and that the applicant was overqualified for her position, were made: Defence, para.12(b);
g)denies that HealthEngine or Dr Tan contravened s.340 of the FW Act: Defence, para.13;
h)as to the claim of exerting undue pressure to agree to deductions from amounts payable for the performance of work, contrary to s.344 of the FW Act, HealthEngine and Dr Tan say that:
(a) each deny that they exerted pressure, whether undue or otherwise, on the applicant or even approached the applicant to agree to a deduction from any amounts payable to the applicant for the performance of work;
(b)each deny that they deducted any amounts payable to the applicant for the performance of work;
(c) say that the applicant's employment contract provided for an annual salary of $70,000 and stated that no overtime or penalties would be paid;
(d) deny that the applicant worked for the first respondent for around 7 days per week …;
(e) say that the applicant has been paid all of her lawful entitlements for time worked;
(f) admit that the second respondent stated the applicant operated with a “start up” culture, and that the second respondent asked the applicant to explain at a weekly staff meeting the difference between a small business and a “start up” culture and say that this occurred as part of the second respondent's practice of asking staff at staff meetings to tell the meeting something they had learnt that week;
(g)say that the second respondent had on several occasions explained to the applicant that a start up culture meant that people needed to be flexible in the work they were prepared to do in order to get the job done . The applicant however was reluctant to perform tasks she considered beneath her;
(h) deny that the second respondent offered the applicant to vacate from her position with the first respondent rather than be paid for work or have work reduced to the contracted hours; (Defence, para.14(a)-(h)).
i)denies coercion of Ms Picos not to exercise her workplace rights: Defence, para.15;
j)denies knowingly and recklessly making false or misleading representations about Ms Picos’ workplace rights, and specifically denies the following:
(b)each deny representing that the applicant had to work from home on Thursday, 1 August 2013, do not admit the applicant was ill on that day, deny that the applicant advised the second respondent that she was ill on that day and say that if the applicant did work from home on that day, she did so voluntarily;
(c)each deny representing that the applicant had to work from home on Friday, 2 August 2013 and say that if the applicant did work from home on that day, she did so voluntarily;
(d)each deny representing that the applicant had to work from home on Saturday, 3 August 2013 and Sunday 4 August 2013 and say that if and to the extent that the applicant did work from home on those days, she did so voluntarily;
(g)each deny representing that it was appropriate for Bosnjak to work on the 2013 end of financial year accounts “in place of” an external accountant and say that Bosnjak performed bookkeeping duties and worked on the 2013 end of financial year accounts with the applicant and White, who in addition to being the first respondent’s CEO was a certified practising accountant employed by the Azure Group, and with the external accounting firm Austasia;
(h)each deny representing that if was “legitimate” for the applicant “to be responsible for an end of financial year (2013)” and say the applicant was required to work with and report to White and that White was responsible for the end of financial year accounts;
(i)each deny making any representations about the safety or “acceptability” of relocating the office of the first respondent on 1 July 2013, during the end of financial year accounting, and say:
(i) the applicant was informed of the pending office relocation before she accepted employment;
(ii) the applicant had little involvement in the office relocation;
(iii) the applicant did not indicate to the respondent that the office relocation, which occurred in the first week of the applicant’s employment, impacted on the performance of her duties; and
(iv) the office relocation during the end of year financial accounting did not raise any safety issues; (Defence, para.16(b), (c), (d), (g), (h) and (i)).
and asserts further facts in support of the denials: Defence, para.16(k);
k)denies the alleged contravention of s.355 of the FW Act involving coercion by allocation of duties to a particular person: Defence, para.17; and
l)further says that if Ms Picos’ employment had not been terminated on 22 August 2013 it would have been terminated very soon thereafter and before the end of her 3 month probationary period in any event: Defence, para.18.
It is fair to observe that the Defence joins issue in relation to, and denies, every contravention alleged by Ms Picos.
Reply
Ms Picos then filed a Reply on 4 December 2013 of 44 pages, plus 64 pages of annexures. The Reply is a mixed bag of pleading, affidavit, submission and provision of copy documents, but it does specifically take issue with, so far as the Court can tell, every denial in the Defence.
Transfer to this Court
At the directions hearing on 6 December 2013, at which Ms Picos appeared in person, the Federal Court ordered that the matter be transferred to this Court for listing for final hearing on a date to be fixed by this Court, and subject to such programming orders as the Court may make in due course.
With the matter having been transferred to this Court, Ms Picos made an urgent application in a case on 12 December 2013 for a change of venue from Perth to Sydney, and for her to be granted leave to enter judgment against HealthEngine and Dr Tan. Two further affidavits, one in support of the venue change, and one in support of judgment, were filed on 13 December 2013, together with the urgent application in a case.
On 18 December 2013 Ms Picos filed an address for service at a street address in Narellan in New South Wales.
Directions hearing – 5 February 2014
The matter came before this Court for directions on 5 February 2014. At the directions hearing Ms Picos, who appeared by telephone, sought to have all of her interlocutory applications determined instanter. The Court explained to her that that was not possible because the matter had been listed for a directions hearing, and not the hearing of the interlocutory applications, and it was otherwise not possible to hear the interlocutory applications that day because other directions hearings and interlocutory applications were listed for hearing on that day, and that HealthEngine and Dr Tan were not on proper notice. Furthermore, the Court indicated that if the interlocutory application for judgment were to be successful then other interlocutory applications, for example, for hearing by video-link from Sydney, or for a change of a venue to Sydney, would fall away. The following exchange then occurred:
MS PICOS: Thank you, your Honour. I would request then that I do not wish to participate in any hearings via video link and I request that the matter is set down for final hearing and the interlocutory application be dealt with as preliminary questions at the final hearing.
HIS HONOUR: Well ‑ ‑ ‑
MS PICOS: And I request that the matter be set down for final hearing in February 2014.
HIS HONOUR: Ms Picos, the interlocutory applications – the nature of them is such that they do not admit of there [their] being heard together with a final hearing. More over, case management considerations would indicate that this is, at least, a three day hearing and, in my view having looked at the papers, it’s probably a five day hearing. And I don’t propose to set a matter down in either Perth or Sydney in the list of the nation’s busiest Federal Trial Court for five days if it’s possible that a default judgment application, that you have argued, will be got up in a hearing which is going to last for half a day maximum in terms of the interlocutory hearing.
So it is not going to be set down for final hearing. It is going to be set down to deal with the interlocutory applications, which are your applications, and it will be set down for half a day, as I say, on a date to be fixed.
MS PICOS: Thank you, your Honour. Can I have an understanding of when that half-day would be set. As it may be that I withdraw the interlocutory applications.
HIS HONOUR: Well, I will make the orders today that it be on a date to be fixed. It requires liaison between this court and Sydney to determine when there is a courtroom with video facility available. Not so much here in Perth where they’re all equipped, but in Sydney where there not necessarily all equipped. When there’s a courtroom available in Sydney with a video link, my deputy associate, Mr Lettenmaier, will consult with both of the parties with respect to available dates and an available date for a Sydney courtroom with a video link will be chosen and the date will be that which is suitable to both parties. Now, if ‑ ‑ ‑
MS PICOS: Thank you, your Honour. I will restore [withdraw] all of the outstanding interlocutory applications and ask that the matter be set down for final hearing on that basis.
HIS HONOUR: All right. Well, I will make a formal order that:
(1) The applicant be given leave to withdraw the interlocutory applications dated (a) 25 November 2013; (b) 28 November 2013 and; (c) 13 December 2013.
Transcript, 5 February 2014, pages 4-5.
The issue of costs was then raised by Counsel for HealthEngine and Dr Tan, and the Court indicated that it considered it would be simpler if all of the questions of costs (including in the Federal Court) were dealt with at the end of the hearing: Transcript, 5 February 2014, page 5. There was then a discussion with respect to the nature of the evidence to be led, and the Court made orders with respect to the filing and serving of affidavits and outlines of contentions of fact and law: Transcript, 5 February 2014, pages 5-6. There was then some discussion concerning witnesses. Ms Picos indicated that she may call up to two witnesses in addition to herself, and she expected that the matter could be resolved within one day, which the Court described as an “extraordinary underestimate”: Transcript, 5 February 2014, page 6. Counsel for HealthEngine and Dr Tan indicated the matter would run for at least three days, but expressed a degree of uncertainty “given the breadth of matters that are ventilated in both the Statement of Claim and the Reply”: Transcript, 5 February 2014, pages 7. Consequently, the Court ordered that “the matter be listed for final hearing in Perth” on 7, 8, 9, 10 and 11 April 2014.
The orders made on 5 February 2014 were, therefore, as follows:
1. The applicant be given leave to withdraw the interim applications dated:
a) 25 November 2013;
b) 28 November 2013; and
c) 13 December 2013.
2. The respondent file and serve any affidavits to be relied upon at hearing by 26 February 2014.
3. The applicant file and serve an outline of contentions of fact and law by 12 March 2014.
4. The respondent file and serve an outline of contentions of fact and law by 26 March 2014.
5. The matter be listed for final hearing in Perth on 7, 8, 9, 10 and 11 April 2014 at 10:15am.
6. Costs of today, if any, be reserved.
On 26 February 2014 HealthEngine and Dr Tan filed five affidavits, including an affidavit of Dr Tan running to 113 pages, and from Miss Catherine Sindermann running to 44 pages, with three short affidavits from Messrs Yap, Wey and Howard.
Although not ordered to, or granted leave to do so, Ms Picos filed what is titled as a “Hearing Affidavit” (“Ms Picos’ Hearing Affidavit”) on 10 March 2014 running to some 23 pages. On the same day, she filed an outline of contentions of fact and law running to 24 pages (“Ms Picos’ Outline”).
On 27 March 2014 HealthEngine and Dr Tan filed an outline of contentions of fact and law running to 18 pages (“Respondents’ Outline”).
It suffices to observe that the respective Outlines join issue on each alleged contravention.
Application in a case – 31 March 2014
The present application in a case supported by affidavit was filed on 31 March 2014, and the orders sought and relevant parts of the affidavit in support are set out above: see paras.10 and 11 above.
There is no mention in Ms Picos’ Outline (filed on10 March 2014, seven days after the date of the WorkCover Certificate) as to any issue with respect to venue or hearing by video-link of the final hearing. Likewise, Ms Picos’ Hearing Affidavit (assuming it to be admissible without order or leave of the Court), and filed the same day as Ms Picos’ Outline, raises no issue with respect to venue, hearing by video-link, or whether Ms Picos’ state of health would preclude her from representing herself in the hearing.
A solicitor for HealthEngine and Dr Tan, Shironi Resha De Silva affirmed an affidavit on 1 April 2014 (“Ms De Silva’s Affidavit”) in relation to Ms Picos’s application in a case. In relation to the application to appear by video-link Ms De Silva’s Affidavit sets out the affidavits filed by Ms Picos (with one error corrected in a subsequent short affidavit), and otherwise says as follows:
(a)The applicant is self-represented and has not filed any affidavits other than her own in these proceedings. The applicant’s evidence is therefore critical in relation to her case;
(b)There are many disputed facts in the proceedings so that the applicant’s credibility will be at issue;
(c)…
(d)The respondents’ counsel intends to cross-examine the applicant on various inconsistencies and matters raised in and documents annexed to the above affidavits for the purpose of allowing the Court to assess her credibility;
(e)The respondents have file 5 affidavits in the proceedings including an affidavit of 115 pages affirmed by the second respondent on 26 February 2014;
(f)The respondents’ counsel intends to cross-examine the applicant on various matters raised in and documents annexed to the respondents’ affidavits;
(g)The applicant has in her statement of claim, reply and Outline of Contentions of Facts and Law made numerous allegations against the respondents. For example, the applicant at paragraphs [54] to [11] [111] of her Outline has alleged 20 different instances or types of adverse action. The applicant then at paragraph [126] of her Outline alleges 22 actions (some of which overlap with the alleged adverse actions) said to have been taken by the respondents with intent to coerce her to not exercise workplace rights and to exercise workplace rights in particular ways;
(h)The respondents’ counsel intends to cross-examine the applicant on most if not all of these allegations;
(i)In the circumstances it is likely that the respondents cross-examination of the applicant will exceed one hearing day;
(j)The volume of documents annexed to the parties’ affidavits is such that a properly orderly examination of the applicant, as well as of the respondents’ witnesses will be very difficult if the applicant is permitted to give evidence and to conduct the proceedings by video-link.
Ms De Silva’s Affidavit, para.6(a)-(b) and (d)-(j).
The law re hearing by video-link
Section 66(1) of Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides that the Court may, for the purposes of any proceeding, direct or allow testimony to be given by video-link or audio-link.
In s 66(1) of the FCCA Act the use of “may” imports a discretion as to whether the court directs or allows the giving of evidence by video-link. The discretion must be exercised having regard to the objects of the FCCA Act and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and to other powers and duties under the FCCA Act and the FCC Rules, and subject to the conditions for the giving of video evidence in s.69(1) and (2) of the FCCA Act. The context in which the discretionary power in s.66(1) is to be exercised, is ascertained by reading together the objects in s.3 and mode of operation in s.42 of the FCCA Act, and having regard to the objects of the FCC Rules under r 1.03, which make it apparent that the Court is intended to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolve proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at paras.20-22 per Lucev FM (“Goodall”).
In Goodall at para.29 per Lucev FM, the then Federal Magistrates Court held that, as a general rule, it ought to be the norm that an application for the evidence of a sufficiently remote witness to be taken by video-link be granted, and the exception that it be refused, subject always to appropriate exercise of the Court’s discretion having regard to factors set out in Australian Securities & Investments Commission v Rich [2004] NSWSC 467 (“Rich”). See also Versace v Monte [2001] FCA 1454 at para.16 per Tamberlin J.
In Rich at paras.20-43 per Austin J, various factors to be considered in determining whether evidence via video-link ought to be taken were set out, including the following:
a)whether the evidence to be taken was centrally important;
b)assessment of credit;
c)management of documents in cross-examination;
d)technological difficulties; and
e)length of cross-examination.
The above list is not intended to be exhaustive: Goodall at para.25 per Lucev FM.
Where evidence is brief and straightforward and cross-examination is likely to be relatively brief on a limited range of issues the use of video-link ought not impair the Court’s assessment of credibility, particularly where there are few documents to be considered: Goodall at para.31 per Lucev FM. A video-link may afford sufficient opportunity for a party to “confront” a witness being cross-examined: R v Goldman(2004) 148 A Crim R 40 at 49 per Redlich J; [2004] VSC 165 at para.33 per Redlich J; Goodall at para.33 per Lucev FM.
In Goodall the Federal Magistrates Court held that evidence from a journalist who had moved from Perth to Los Angeles as to whether photos appearing as part of a newspaper article were the subject of a licence agreement, or that another licence to use the photos would not be given unless the copyright owner was appropriately remunerated, was likely to be brief and straightforward, and therefore suitable to be taken by video-link: at para.30 per Lucev FM, citing Rich at para.22 per Austin J.
Where the matter is a contentious one requiring cross-examination on documents by each party of the other party, and is a matter in respect of which credit will be in issue, a video-link may not be appropriate: Matthews v Hargreaves (No.2) [2010] FMCA 933 at paras.10-11 per Lucev FM (“Matthews (No.2)”). Where the volume of documents is such as to make proper orderly cross-examination very difficult, evidence by video-link is unlikely to be ordered: Rich at paras.29-32 per Austin J. In Rich there were eighteen volumes of plaintiff’s papers, plus other documents to be tendered by other parties: Rich at para.32 per Austin J. By contrast where there were only two articles from a local Sunday paper and some photographs published in that paper to be considered, a video-link was appropriate: Goodall. In an appropriate case the provision of an agreed bundle of documents may suffice to prevent document management becoming an issue at hearing: Goodall at para.37 per Lucev FM.
The length of cross-examination is a factor to be considered, both as to the length of cross-examination of individual witnesses and the number of witnesses to be cross-examined by video: Rich at paras.35-36 per Austin J. There is no significant problem with video-link evidence, and for practical purposes this is usually cross-examination and re-examination in cases where the evidence-in-chief of the witness is usually on affidavit, for a period of hours: McDonald & Anor v Federal Commissioner of Taxation (2000) 44 ATR 226 at 231-232 per Finn J; [2000] FCA 577 at paras.19 and 25 per Finn J (“McDonald”); Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at para.30 per Katz J.
Minor difficulties, including breaks in transmission and the necessity to repeat some evidence, are unlikely to be such as to significantly affect the quality of the evidence given by video-link: McDonald ATR at 231-232 per Finn J; FCA at paras.19-21 per Finn J. A court can afford sufficient protection against prejudice or unfairness caused by technological difficulties, or for any other reason, by making orders allowing it to terminate a video-link if it is so unsatisfactory that it is unfair to either party to continue, or is unfair for any reason: B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 109-110 per Williams J.
Where there are known difficulties with video conference link-ups with certain locations a court may decline to take evidence by video-link: Matthews (No.2) at para.11 per Lucev FM (in that case a video-link with Christmas Island).
Case management principles are important in maintaining the proper programming and running of litigation, and the use of often too scarce public resources in so doing. The Court has a clear legislative fiat to proceed informally, without delay, efficiently and economically, using streamlined processes, but always justly: FCCA Act, ss.3(2)(a) and (b) and 42; FCC Rules, r.1.03; Goodall at paras.21 and 46 per Lucev FM.
Consideration of request for video-link hearing
Whether video-link hearing for final hearing suggested or approved at directions hearing on 5 February 2014
Ms Picos’ March 2014 Affidavit suggests that the Court said that she could appear by video at the final hearing, but that she declined the offer, at the directions hearing on 5 February 2014.
The relevant transcript from the directions hearing on 5 February 2014 is set out above: see para.30. In context, what was discussed was the length of hearing, and in particular the length of hearing for the various then extant interlocutory applications made by Ms Picos. In the course of that discussion, and having been apprised that the interlocutory and final hearings could not occur together, and that the interlocutory hearings would have to occur before final hearing, Ms Picos, as she admits: see Ms Picos’ March 2014 Affidavit, withdrew her interlocutory applications to allow the matter to be set down for final hearing expeditiously. The Court ordered that she be given leave to withdraw the then extant interlocutory applications. The Court went on to order that the matter “be listed for final hearing in Perth” on 7, 8, 9, 10 and 11 April 2014. There was no order for a video-link hearing for the final hearing.
The suggestion that the Court ordered, approved or suggested that the final hearing would be by video-link hearing is wrong, and can only be said to arise by reason of some misunderstanding or misapprehension, after the event, by Ms Picos. Ms Picos conceded as much at the hearing of the application in a case. The assertion that she declined an “offer” to appear at the final hearing by video-link is simply not borne out by an examination of the transcript on 5 February 2014.
Medical evidence in relation to video-link hearing
The Court notes that the WorkCover Certificate is dated 3 March 2014. Notwithstanding that Ms Picos was certified as having no current work capacity for any employment, she filed, just seven days later, on 10 March 2014, detailed documents, being Ms Picos’ Hearing Affidavit and Ms Picos’ Outline. In neither the Hearing Affidavit nor Ms Picos’ Outline was there any hint that she was affected in any way by her being unwell.
It is not the case that Ms Picos is so unwell that she cannot attend or participate in a final hearing. Indeed, she seeks to be heard and participate, but seeks to do so from Sydney and not Perth. The Court can only deduce from that that she is well enough to attend and participate in a 5 day hearing. It might be said to be inferred from Ms Picos’ Affidavit that her un-wellness is such that she cannot travel, and this is what she asserted at hearing. There is, however, no medical evidence that supports any assertion as to her being too unwell to travel. The medical evidence only goes so far as to say that Ms Picos has “no current work capacity for any employment” from 3 March 2014 to 30 April 2014, not that she is unfit to travel. And by her own submission, it can be inferred that she is fit to attend and participate in a 5 day hearing, which she seeks to do, albeit in Sydney.
To meet the objection that there was no medical evidence supporting her assertion as to her being too unwell to travel Ms Picos said at hearing that she, only this week, decided that she was too unwell, and that is why she made the application for a video-link hearing. That assertion is of course entirely self-serving in the circumstances, and unsupported by any contemporaneous medical evidence. Further, as Counsel for the respondents correctly points out, no mention of Ms Picos being too unwell to travel was made in the 30 March 2014 Email requesting a video-link hearing, and it was not until Ms Picos was informed by an officer of the Court that an application in a case and an affidavit would have to be filed, that there was a suggestion of unwellness to travel, but supported by the WorkCover Certificate, which as the Court has observed, does not support the assertion that Ms Picos is too unwell to travel.
The WorkCover Certificate is in any event most unsatisfactory. It is a pro forma certificate, which is said to be signed, and appears to be so on the copy annexed to the affidavit, but which bears no name of the signatory. Nor is the occupation of the signatory given. Nor are any of the qualifications of the signatory given. In the circumstances, the Court cannot accept such evidence as medical evidence, or the evidence of a medical practitioner. The bare WorkCover Certificate does not address the relevant issues for which it is now relied upon by Ms Picos: first, whether she is fit to attend and participate in a 5 day hearing, and, second, whether she is fit to travel to Perth.
In all the circumstances, the Court has come to the view that there is nothing in the alleged medical evidence, and nothing otherwise, which suggests that Ms Picos is not capable of attending and participating in a 5 day hearing, or of travelling to Perth to do so.
Cross-examination, credit and documents
In Rich the New South Wales Supreme Court observed that:
It seems to me that there is no inconsistency in the cases on this point. The fact that the witness's evidence will be centrally important should not of itself persuade the court against using audiovisual facilities. But if the court can anticipate that the cross-examination of the witness will be lengthy and complex, and that the credit of the witness will be challenged, that combination of factors is likely to persuade the court against audiovisual evidence unless there is a good reason for choosing it (such as, for example, a large difference in costs or the illness of the overseas witness).
Rich at para.22 per Austin J.
For reasons already set out the Court is not satisfied that illness is an issue in these proceedings, or an issue that ought to preclude these proceedings from being heard next week, as listed in Perth and not by video-link.
There is no evidence that costs issues impede Ms Picos from attending a hearing in Perth.
In this case it is not the evidence of a single witness, or some of the evidence of some of the witnesses, but the whole hearing that Ms Picos seeks be heard by video-link.
It is abundantly clear on the basis of the extracts from the Statement of Claim and Defence set out above, and the Reply, when read in conjunction with the Outlines of the parties, and Ms De Silva’s Affidavit, that the cross-examination and credit of the two primary witnesses, Ms Picos and Dr Tan, will be critical to the outcome of these proceedings. The cross-examinations of both Ms Picos and Dr Tan are likely to be lengthy, and factually complex, and both will probably take at least one day, and possibly longer. It needs to be borne in mind, especially with respect to Dr Tan and the respondents’ other witnesses, that cross-examination will be conducted by a self-represented litigant, who although qualified in the law, professes no practical experience in the actual conduct of civil litigation. If the conduct of the litigation thus far, and if the nature of the matters raised in the Statement of Claim, Defence and Reply are any indication, cross-examination of both Ms Picos and Dr Tan is likely to be both difficult, in addition to it being long.
This is not a case where the evidence to be led by video will be simple or straightforward, or where it may be made so, or more so, by experienced and competent Counsel representing both parties. Ms Picos’ presentation arguing these matters, whilst indicating that she is not at all reticent, also lent itself to the impression that in the course of a five day hearing, there may be many unnecessary objections or interruptions made by her, due to, and this is no criticism of her, her lack of litigation experience. The Court is aware of, and appreciates the difficulties faced in preparation and presentation of a case by a self-represented litigant, and bears in mind that the role of a federal court in relation to self-represented litigants entails a requirement to be fair to the self-represented litigant, but that in doing so it does not entail being unfair to the other party, but rather to give such guidance to a self-represented litigant as is necessary to ensure that the case proceedings, so far as is possible, in a manner consistent with the interests of justice: Purnell Motors Pty Ltd v Jones [2014] FCCA 620 at para.79 per Judge Lloyd-Jones, and cases there cited. In any event, and more particularly, there was nothing in her presentation or manner of argument which would indicate that she was unwell, anxious or unable to properly represent herself in any hearing. If anything, the manner and content of the argument presented by her yesterday, indicates that the contrary is true.
Another aspect of the case is the number of documents which are in evidence in the affidavits. The number of documents is significant, although in the Court’s view they are not sufficiently voluminous to obviously preclude a video-link hearing. There will, no doubt, however, be extensive cross-examination on those documents if the manner in which issue has been joined in the Statement of Claim, Defence and Reply is any indication, and there would perhaps be a little more than usual difficulty in dealing with the documents at hearing during cross-examination. The documents themselves are appended to affidavits, which makes them more manageable as each party has served copies. Overall, the number and type of documents in these proceedings do not weigh against a video-link hearing.
Credit will be important in this case, as it involves determination of significant competing factual issues, and also the determination of the plausibility or believability of reasons given for HealthEngine taking any adverse action against Ms Picos. That is of particular significance in this case because HealthEngine asserts that the termination of Ms Picos’ employment was in part rendered necessary by her conduct, attitude and interaction with others in the workplace.
In those circumstances, in respect of the credit of Ms Picos, and the assessment of her demeanour, a video-link hearing will be a significant disadvantage. Ms Picos recognises this factor herself in her affidavit, and it would be unfair to her to have a video-link hearing in circumstances where there would be a significant disadvantage to her by doing so. The Court appreciates that she appears to be prepared to take that risk, but the Court must be fair and just, and the Court considers that it would be unfair and unjust if the assessment of Ms Picos’ credit were to be affected by having a video-link hearing.
Technological issues
Ms Picos seeks to have the matter heard by video-link hearing between Sydney and Perth. The respondents’ Counsel indicated that the respondents did not consider that there were any technological issues which would preclude such a hearing.
Whilst there were technological difficulties on the day of the hearing of the application in a case, and certain logistical difficulties were foreshadowed, those difficulties would not have been insurmountable and therefore do not weigh against a video-link hearing.
Conclusion - video-link hearing
On balance, having regard to:
a)the nature of the evidence in this case;
b)the fact that all of the evidence, and the entirety of the case, is sought to be heard by video-link hearing;
c)the likely length and factual complexity of cross-examination of the primary witnesses, Ms Picos and Dr Tan;
d)the fact that Ms Picos is a self-represented litigant, albeit one qualified in the law, but without practical experience as a litigator; and
e)the necessity to assess credit, particularly of Ms Picos,
the Court considers that those factors weigh against a five day hearing being conduct entirely by video-link hearing, and outweigh other factors. The Court therefore concludes that this is not a proper case for a video-link hearing. That part of the application in a case which seeks a video-link hearing must, therefore, be dismissed.
Request for change of venue
Evidence
Ms Picos relies upon an affidavit in support of venue affirmed 12 December 2013 (“Ms Picos’ Change of Venue Affidavit”) in relation to that part of her application in a case which seeks a change of venue. Ms Picos’ Change of Venue Affidavit sets out some facts, not all of which are necessarily relevant, at paragraphs 12 to 27 as follows:
12.I am the Applicant.
13.I reside in Sydney, New South Wales.
14.The First Respondent has operations in Sydney, New South Wales.
15.The majority of the First Respondent’s board reside in Sydney (4 out of 6 board members reside in Sydney).
16.The Second Respondent travels to Sydney every month for board meetings.
17.The Second Respondent is linked, through philanthropy, being Giving West, to Mr Malcolm McCusker, the Governor of Western Australia.
18.The proceeding has been frustrated in Perth in the Fair Work Division of the Federal Court of Australia since August 2013.
19.The matter is not listed for final hearing as at 10 December 2013.
20.On 6 December 2013, I left Perth, Western Australia via motor vehicle (2013 Mercedes Benz), driving across the Nullabor Plain in pitch black and without telephone reception, at my expense - ~$700 in fuel and ~$53,000 in motor vehicle, to arrive in Sydney, New South Wales on Monday, 9 December 2013; after being advised by the Federal Court of Australia, Perth, that the proceeding would not be listed for final hearing before June 2014; and that when the matter would be listed for final hearings is “like asking how long is a piece of string”.
21.I will not be returning to Perth via motor vehicle, driving across the Nullabor Plain, being a single 27 year old white female, or any other method.
22.The First Respondent dismissed, I, Connie Picos, with payment for 4 days in lieu of notice around 20 August 2013 in contravention of the Fair Work Act 2009; 4 months ago, amounting to around $11.27 per day for, I, Connie Picos to date and certainly less than the cost of fuel per day between Perth and Sydney; actually, less than the cost of food and water.
23.Whether or not the court grants a change of venue involves a determination on the balance of convenience. The balance of convenience in this proceeding is heavily weighted in favour of the matter being heard in Sydney, New South Wales; including, that I, the Applicant, in a Fair Work case, could never reasonably be expected to return to Perth under the circumstances.
24.Ultimately, a change of venue application must be determined according to the interests of justice:
a.in this proceeding not only has justice not been seen to be done;
b.to date, the Respondents have been permitted to file a defence out of time in the Perth registry in default without explanation in the face of an Applicant, Connie Picos, interlocutory application listed for “mention only” for judgment on default;
c.after I instructed 70 per cent of the WA Bar without success, who may be following and seeing the case; and
d.the Respondents have been permitted to not serve the Defence on I, Connie Picos;
e.with the Defence prepared by DLA Piper jointly for a Medical Director, Marcus Tan, accused of physically injuring a person, Connie Picos, at the same time as representing a corporation, HealthEngine Pty Ltd, for which Marcus Tan is not a shareholder and should have been banned from managing months ago;
f.in this case, in fact, justice has not been done Perth.
25.I did not open the proceeding in the Perth registry.
26.The Perth registry is making a mockery of the Australian justice system.
27.It is not for the Perth Registry staff to dictate to Connie Picos, Applicant or any other person when and where the proceeding will be opened and heard.
Thereafter follows a series of complaints and issues raised by Ms Picos, some embarrassing and some bordering on the scandalous, but including:
a)a complaint about the length of time the matter took to reach a third directions hearing in the Federal Court (at which time it was transferred to this Court);
b)the fact that, having been transferred to this Court, the matter was transferred to this Court’s Perth Registry and not the Sydney Registry;
c)the delays in possibly listing the matter, the matter being one which she describes as “simple”; and
d)alleging default in and by the HealthEngine and Dr Tan failing to “provide a reasonable defence” or provide a defence on time.
Ms De Silva’s Affidavit relevantly provides that:
Application for matter to be heard in Sydney
Conduct giving rise to proceedings took place in Perth
7.As stated by the applicant in the material filed in this proceeding, she was employed by the first respondent and carried out her duties from the first respondent’s headquarters in Perth.
8.Further, all of the conduct giving rise to this proceeding took place in Perth.
First respondent’s principal place of business is in Perth
9.On 21 January 2014, the second respondent instructed me that the first respondent’s offices are at 50 Hasler Road, Osborne Park in Western Australia.
10.Under paragraph 16 of the applicant’s Affidavit in Support of Venue affirmed on 12 December 2013, the applicant has alleged that the second respondent travels to Sydney every month for board meetings. The second respondent has instructed me on 21 January 2014 that he does not travel to Sydney every month as most of the board meetings are conducted by Telepresence.
Respondents’ witnesses work and reside in Perth
11.I have reviewed the affidavits filed by the applicant and the respondents in these proceedings and know that numerous allegations made by the applicant in her affidavit, affirmed on 10 March 2014 (and titled “Hearing Affidavit”) are disputed. The allegations will therefore have to be the subject of oral evidence by the respondents’ witnesses.
12.I have met with and interviewed each of the respondents’ five witnesses and can confirm that they work at the first respondent’s office in Osborne Park, Perth.
13.The second respondent confirmed to me on 21 January 2014 that all of the respondents’ witnesses, including the second respondent, reside in Western Australia.
14.I have been informed by the second respondent and believe that each of the respondents’ witnesses hold positions with the first respondent which are critical to the first respondent’s business being responsible for running the first respondent’s support team, sales team and engineering team. Were these witnesses required to travel to Sydney to give evidence it would cause considerable disruption to the first respondent’s business.
15.If the final hearing of the matter was transferred to Sydney, the first respondent would incur the cost and inconvenience of its witnesses traveling to and in some cases having to be accommodated overnight in Sydney.
Respondents’ counsel and solicitors located in Perth
16.The respondents’ counsel and solicitors reside and work in Perth.
17.DLA Piper Australia’s Perth office has had conduct of this matter since the proceeding was first commenced in August 2013.
18.If the final hearing of the matter was transferred to Sydney, the first respondent would incur the cost of its counsel and solicitors travelling to and being accommodated in Sydney for the duration of the trial.
The law re change of venue
Section 52 of the FCCA Act allows the Court to sit anywhere in Australia, including its external Territories, and, by order, in relation to all or any part of a proceeding, and at any stage of a proceeding, conduct or continue a proceeding at a place specified in the order, subject to any conditions that the Court may impose. Section 52 must be read in conjunction with r.8.01 of the FCC Rules, and in particular, r.8.01(2), which sets out factors to which the Court must have regard in determining change of venue applications.
Sentry Corporation test
In National Mutual Holdings Pty Ltd & Ors v Sentry Corporation & Anor (1988) 19 FCR 155 (“Sentry Corporation”) the Full Court of the Federal Court dealt with an application that a proceeding commenced in Melbourne should be tried in Sydney as that was the “proper place” of the proceedings. In determining whether there was a sound reason to direct that the proceeding be conducted or continued elsewhere, other than Melbourne where it was commenced, the Full Court of the Federal Court said:
Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court. It cannot and should not, in our opinion, be defined more closely or precisely.
Sentry Corporation at 162 per Bowen CJ, Woodward and Lockhart JJ.
In applying the Sentry Corporation test the Full Court of the Federal Court identified a number of factors which might be taken into account, including:
a)residence of the parties;
b)residence of the witnesses;
c)expense to the parties;
d)the place where the cause of action arose; and
e)the convenience of the court itself:
Sentry Corporation at 162 per Bowen CJ, Woodward and Lockhart JJ.
The Federal Court has identified other factors which warrant consideration when applying the Sentry Corporation test. Those factors include:
a)that the choice of venue should not be capricious: Sentry Corporation at 162 per Bowen CJ, Woodward and Lockhart JJ;
b)whether a party might receive a legitimate juridical advantage (such as the ability to claim damages or additional damages, or to be awarded pre-judgment interest, in one venue and not the other): Sentry Corporation at 167 per Bowen CJ, Woodward and Lockhart JJ;
c)the governing law of any contract: The Australian Steel Company (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69 at 91 per Kenny J ; [2003] FCA 374 at para.87 per Kenny J (“Steel Foundations”);
d)the size and nature of any businesses concerned: WH Books Ltd & Ors v Miller & Anor (1998) 41 IPR 364 at 366 per Emmett J (“WH Books”);
e)the degree of connection with the respective venues, and in particular the subject matter of the litigation (especially where a view or inspection might be required by the court): Steel Foundations Ltd IPR at 90-91 per Kenny J; FCA at paras.79-89 per Kenny J; WH Books 41 IPR 364 at 365 per Emmett J;
f)the location of counsel, solicitors and other advisers, particularly those with actual knowledge and relevant experience: Australian Competition and Consumer Commission v Internic Technology Pty Ltd & Anor (1998) 42 IPR 225 at 232 per Lindgren J (“Internic Technology”);
g)case and docket management considerations, particularly whether a case can or ought to be managed and heard in one registry, or managed in one registry and heard in another, which might include considerations of what steps have been taken in the litigation, and if steps have been taken, the nature of those steps and how many steps: WG & B Manufacturing Pty Ltd v Telsa Farad Pty Ltd [1999] FCA 859 at para.2 per Finkelstein J; Steel Foundations IPR at 92 per Kenny J; [2003] FCA 374 at para.92 per Kenny J;
h)that the court can sit, take evidence and hear witnesses anywhere in Australia: Internic Technology at 233 per Lindgren J; and
i)whether witness statements or affidavits have already been taken, and whether a change of venue might render them redundant: Internic Technology at 235 per Lindgren J.
The factors set out in r.8.01(2) of the FCC Rules require that the Court “must have regard to” the following:
a)the convenience of the parties;
b)the limiting of expense and the cost of the proceeding;
c)whether the matter has been listed for final hearing; and
d)any other relevant matter.
Consideration of the r.8.01(2) factors is mandatory: Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495 at para.21 per Lucev FM.
In Hoskin v Ernst & Young Services Pty Ltd [2010] FMCA 947 (“Hoskin”) the respondent, a major accounting firm, sought to transfer human rights age discrimination proceedings from the Perth registry to the Sydney registry of the Federal Magistrates Court. Having regard to the convenience of the majority of witnesses (18 out of 20 of the witnesses resided in Sydney), the limitation of expenses and costs, and the connection between the subject matter of the litigation and Sydney (the applicant had voluntarily moved to Perth from Sydney after his services had been terminated by the respondent, and the matters giving rise to the litigation had all occurred in Sydney), the Federal Magistrates Court determined that the proceedings ought to be transferred from the Perth registry to the Sydney registry: Hoskin at para.39 per Lucev FM.
In Ejueyitsi v Commissioner of Police (Western Australia) [2012] FMCA 775 the Federal Magistrates Court granted the respondent’s application to transfer the proceedings from the Melbourne registry to the Perth registry of the Federal Magistrates Court, two of the crucial issues being that:
a)the matter arose in Western Australia; and
b)the incidents occurred in Western Australia, and the cause of action was, therefore, in Western Australia.
Consideration of change of venue application
In terms of the convenience of the parties the Court observes that:
a)Ms Picos now resides in Sydney;
b)the matter arose in Perth;
c)Ms Picos was employed by HealthEngine on 27 June 2013 in Perth;
d)all incidents in relation to the matters alleged occurred in Perth, and the cause of action therefore arose in Perth;
e)Ms Picos was in Perth when the cause of action arose, and then left, more than three months later, of her own volition, and has gone on affidavit making an emphatic statement that she was not coming back, from which she has since resiled;
f)HealthEngine’s offices and registered place of business are in the Perth suburb of Osborne Park, with its officers (including its five witnesses) working in its offices in Osborne Park;
g)the day-to-day operations of HealthEngine are primarily in Perth, with a very limited connection to Sydney;
h)if it be a fact that four of the six directors of HealthEngine reside in Sydney, it is irrelevant in this case because none of them are being called; and
i)five of the six witnesses live and work in Perth.
The convenience of the parties overall favours the matter being heard in Perth where the events concerned occurred, where all of the witnesses, save Ms Picos, work and reside, and where HealthEngine has its offices and operates from.
In terms of limitation of expense and costs for the proceedings Ms Picos would have to expend one airfare and accommodation and meals for five to six days to attend the hearing in Perth. Whilst there was no actual evidence about these costs it can reasonably be inferred that, even allowing for the fact that she is a self-represented litigant, and an individual, that those expenses are relatively, limited, although on a proportional basis they may be more significant for Ms Picos.
By contrast, the respondents will have to fly five witnesses, Counsel and solicitors, to Sydney, accommodate each of them, and provide for their meals. The Court can reasonably infer that the costs of doing so would be significant. It is not appropriate, at this stage, less than a week before a final hearing of five days is listed, for Counsel or solicitors to be changed and new Counsel and solicitors to be briefed in Sydney to avoid such expense. In any event, the cost of changing Counsel and solicitors at this stage would itself be significant, arguably impracticable, and doubtless prejudicial to HealthEngine and Dr Tan.
There is also a cost to the taxpayer: the matter is presently listed before the Court as presently constituted, and there was no indication that any other Judge might be able to hear the matter were the venue to be changed to Sydney next week, if that were practicable. The taxpayer would therefore have to meet the cost of flights, accommodation and meals for a Judge, and possibly staff as well.
There is significantly greater cost and expense, and inconvenience, to HealthEngine and Dr Tan, and to the Court, if the venue of these proceedings were to be changed to Sydney.
The limitation of expense and costs of proceedings does not favour a change of venue at this late stage, or at all.
As to whether the matter is listed for final hearing, it is listed for final hearing next week. It has been so listed for two months. It was listed for final hearing with some degree of urgency because of the urgings of Ms Picos, and was only so listed because of a change in other arrangements for the currently presiding Judge which meant that next week became available for the hearing shortly before the directions hearing on 5 February 2014.
The fact that the matter has been listed for final hearing, and has been so listed for almost two months, is a significant case management factor which favours the venue of the hearing not being changed.
With respect to the issue of delay generally, that was the subject of trenchant, but wholly unwarranted, criticism in Ms Picos’ Change of Venue Affidavit. The matter followed a usual course in the Federal Court, and indeed three directions hearings were held within the space of two months, at which appropriate programming orders were made, and which ultimately resulted in the matter being transferred to this Court. When the matter was transferred to this Court the matter was listed in the normal course for a directions hearing, which even allowing for the Christmas period, was within eight weeks of the transfer. That is an entirely normal time frame for the listing of a matter for first directions in this Court. At the first directions hearing it was listed for a five day hearing within two months, and so listed within four months of coming into this Court. Despite what Ms Picos submits, there has been no delay, and if anything, the programming of the matter to a final hearing represents an unusually speedy listing for a five day matter in this Court. Were it not for the fact that next week became free for reasons entirely unrelated to the conduct of these proceedings, shortly prior to the 5 February 2014 directions hearing, the matter might not have been listed for hearing for a further six months, that is until sometime in August 2014 or thereafter.
In relation to other relevant matters the present choice of venue is not capricious. Indeed, the proceedings were commenced by Ms Picos in Perth, and for reasons set out above, have a natural affinity with Perth, and all steps in the litigation have thus far taken place in Perth. Ms Picos has also suggested during the course of these proceedings that, the matter having been transferred to this Court by the Federal Court, the transfer should have been effected by her being able to make an application, in the Sydney Registry, to commence these proceedings in the Sydney Registry of this Court. The Court observes that even if Ms Picos had done so, it appears to the Court to be almost inevitable that there then would have been a change of venue application by HealthEngine and Dr Tan for proceedings commenced in the Sydney Registry to be transferred to Perth. For reasons otherwise set out in these Reasons for Judgment, an application for a change of venue from Sydney to Perth would have succeeded. There can be little or no doubt that the proper place for the hearing of this matter is Perth.
Conclusion – change of venue
The Court has concluded, on a proper consideration of the necessary factors with respect to change of venue, that that part of Ms Picos’ application in a case which seeks a change of venue to Sydney ought to be dismissed.
Leave to enter default judgment
At the outset of the hearing last Wednesday Ms Picos was given leave to make an oral application for leave to have a Registrar enter default judgment against HealthEngine and Dr Tan. The basis for the application for default judgment was that:
a)HealthEngine and Dr Tan were one day late in filing the Respondents’ Outline (filed 27 March 2014 instead of 26 March 2014); and
b)they were a further day later in serving the outline of contentions of fact and law (being served on 28 March 2014 rather than 26 March 2014).
HealthEngine and Dr Tan sought to justify the late filing by reference to Ms Picos’ Hearing Affidavit which was filed without leave, and which they said contained additional material which needed to be dealt with in the Respondents’ Outline. The Court does not need to finally determine whether that is so or not.
The filing of the Respondents’ Outline was the last process to be completed before this matter was to be heard. The fact that the Respondents’ Outline was filed late is not to be condoned, even if it is in the face of the filing of Ms Picos’ Hearing Affidavit (filed without leave), but a lack of condonation does not necessarily mean that the late filing of the Respondents’ Outline warrants the ultimate penalty of entry of default judgment.
Ms Picos complains that being two days late in the filing of the Respondents’ Outline, in the context of it being ordered to be filed 12 days before the hearing, is significant. She says that is particularly so in the case of her being a self-represented litigant, and her being unwell. But it is not decisive, especially in this case where the outline of the respondents’ case is evident from a well-particularised Defence, and fulsome affidavits. The Court also observes that Ms Picos is a particular kind of self-represented litigant. It is plain from the face of her curriculum vitae, attached to Dr Tan’s Affidavit, that she purported to have a joint Bachelor of Business/LLB, although she now submits to the Court when this matter was raised by Counsel for the respondents, that she discontinued the LLB component of the course. In any event, there is no doubt that she has a Juris Doctor, although she submitted that it did not focus on civil litigation procedure. Irrespective, those qualifications clearly give her, as manifested by the drafting of her Statement of Claim, large parts of her affidavits, Ms Picos’s Outline, the various interlocutory applications made to the Federal Court and this Court, and the manner in which she made submissions to this Court yesterday, a qualification and capacity which is far greater than is usual in a self-represented litigant. There is little doubt that Ms Picos has far greater capacity to conduct litigation of this type than the usual self-represented litigant.
As to the assertion that Ms Picos is unwell, there is, for reasons set out above, no evidence that she is incapable of conducting a five day hearing. Indeed, she does not make that assertion, but rather asserts that she is too unwell to travel to Perth. For reasons set out above the Court has not accepted that assertion.
Default judgment ought not be entered without a proper consideration of all of the circumstances before the discretion is exercised to allow a default judgment to be entered. The power is one to be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, and of the likely serious consequences to the party in default, and balancing the need for the expeditious conduct of litigation, and the strong reluctance of courts to prevent litigants having a proper opportunity to present their cases: Wu v Avin Operations Pty Ltd ACN 076956913 [2006] FCA 36 at para.49-51 per Kenny J; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395-396 per Wilcox and Gummow JJ; KM & A Chadwick Pty Ltd v Yeung [1995] FCA 354. That is particularly so where, as here, the amount claimed exceeds $127 million.
Default judgment ought not be entered where, as here, a matter is ready for hearing, and the hearing is less than a week hence, and the only basis is that the very last processes in the course of proceedings prior to hearing, in this case the filing and service of the Respondents’ Outline, have been filed and served one and two days late respectively. The Court has no doubt that were it to allow leave for a Registrar to enter default judgment in this case, that that order, or any judgment so entered, would ultimately be overturned or set aside. The order sought here, in context, reflects a pettifogging approach which the law has long since abandoned. To enter default judgment as sought by Ms Picos at this stage of proceedings on the basis of a comparatively minor default would bring the law into disrepute.
The Court therefore dismissed the oral application for leave to have a Registrar enter default judgment against the respondents.
Conclusions and orders
The Court has concluded that:
a)the application in a case filed 31 March 2014 must be dismissed; and
b)the application for leave to have a Registrar enter default judgment must be dismissed.
The Court made orders to the above effect following the hearing last Wednesday together with an order for these Reasons for Judgment to be published at a later date, and for costs of the application in a case filed 31 March 2014 and the oral application for leave to have a Registrar enter default judgment to be reserved.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 4 April 2014
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