Somasundaram v Department of Education and Training and Ors (Ruling)
[2018] VCC 649
•15 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-03543
| AMARA SOMASUNDARAM | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING & ORS (as per the attached Schedule of Parties) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2018 | |
DATE OF RULING: | 15 May 2018 | |
CASE MAY BE CITED AS: | Somasundaram v Department of Education and Training & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 649 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Originating Motion endorsed with a Statement of Claim – serious procedural defects – incorrectly named first defendant – defects forgiven by the defendants in preference for a determination that the plaintiff’s claim has no real prospect of success – statement of claim not disclosing a cause of action – attempts by the plaintiff to enlarge the causes of action to include a breach of whistleblower legislation
Legislation Cited: County Court Civil Procedure Rules 2008, r5.01, r45.02(1); Public Administration Act 2004, s104(2)(b); Accident Compensation Act 1985, Div 8A; Workplace Injury Rehabilitation and Compensation Act 2013, Div 2; Whistleblowers Protection Act 2001, s19(1), s19(2); Protected Disclosure Act 2012; Civil Procedure Act 2010, s62; Crown Proceedings Act 1958, s23(1)(b)
Cases Cited:McKernan v Fraser (1931) 46 CLR 343; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Brown v Maurice Blackburn Cashman (2013) 45 VR 22
Ruling: The plaintiff’s proceeding be dismissed with an award of costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendants | Ms E Latif | Minter Ellison |
SCHEDULE OF PARTIES
| AMARA SOMASUNDARAM | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING | First Defendant |
| and | |
| GILL CALLISTER | Second Defendant |
| PETER GREENWELL | Third Defendant |
| TONY BUDGEN | Fourth Defendant |
| SUE HOLMES | Fifth Defendant |
| JACQUELINE WILTSHIRE | Sixth Defendant |
| LEANNE STRACHAN | Seventh Defendant |
| LUCIANO MENOLASCINA | Eighth Defendant |
| DENISE DEMPSEY | Ninth Defendant |
| SAMONE BOUCHER | Tenth Defendant |
| DOROTHEA KOOPMAN | Eleventh Defendant |
| ANDREW HOLDEN | Twelfth Defendant |
| RODERICK PRICE | Thirteenth Defendant |
| JOEL CORDWELL | Fourteenth Defendant |
| ROSE MAJOR | Fifteenth Defendant |
| ANNE BROADRIBB | Sixteenth Defendant |
| GAIL WALKER | Seventeenth Defendant |
HIS HONOUR:
Introduction
1 The plaintiff filed an Originating Motion on 19 July 2017 endorsed with a Statement of Claim. The claim was brought against the “Department of Education and Training” and sixteen named individuals[1] referred to in a schedule to the Originating Motion.
[1]I will refer to the 16 named individuals as “the other defendants”
2 The plaintiff appeared in person. Ms Latif of counsel appeared for the defendants.
3 The procedure employed by the plaintiff in commencing the proceeding is flawed, and there are serious defects in the statement of claim. I will deal with each of them individually below.
The Originating Motion
4 Rule 5.01 of the County Court Civil Procedure Rules 2008 (“the Rules”) provides that a proceeding may be commenced by an originating motion. Rule 45.02(1) provides that the evidence at the trial of a proceeding commenced by originating motion “shall be given by affidavit”. Endorsing the originating motion with the statement of claim is not permitted by the Rules.
5 This can be cured by the court ordering that the proceeding be by pleadings. I will work on the premise that the plaintiff has successfully applied for such an order.
The First Defendant
6 The first defendant, the “Department of Education and Training”, is not a legal person. Counsel for the defendants informed me that the Secretary of the Department of Education (“the Secretary”) is a legal person and can be sued pursuant to a declaration made by the Governor in Council by order published in the Government Gazette by s104(2)(b) of the Public Administration Act 2004.
7 I will work on the premise that the plaintiff intended to commence the proceeding against Secretary of the Department of Education, and that she has successfully made an application to substitute the Secretary as the first defendant.
8 The other sixteen defendants have not been personally served. The Secretary accepted service on their behalf.
The Statement of Claim
9 The Statement of Claim alleges:
· That the plaintiff was a teacher employed by the Department of Education and Training.
· In paragraphs 6-18, the plaintiff alleges that the other defendants conspired to damage her professional reputation (“the conduct”).
· In paragraph 6, she alleges that some of that conduct resulted in her becoming “mentally damaged”. In paragraph 7, she alleges that she then went on to WorkCover. She particularised the conduct that resulted in the mental damage in paragraphs 8 to11, and in particulars subjoined to paragraph 11.
· In some of the particulars subjoined to paragraph 11, she alleges that the conduct resulted in her being unfairly dismissed. In paragraph 12, she alleges that the wrongful dismissal was tainted by collusion by the Secretary, and the Secretary’s employees in the manner in which Secretary conducted its defence of her wrongful dismissal claim. Paragraph 14 alleges that she was reinstated to her employment as a teacher on 8 October 2015 by Deputy President Gooley who I assume is a member of an industrial tribunal or court.
· In paragraph 15, she alleges that following her reinstatement, the Secretary continued to harm her professional reputation “through deliberate actions and inactions”. She particularised that conduct in lengthy particulars subjoined to that paragraph.
· In paragraphs 15 to 18, she alleges that she is “abused”, “undermined” and that her work is “sabotaged”; that the conduct extends to students who describe her as “crazy”, saying that she should leave the school; that the difficulties she experiences are compounded by the “leadership team” not taking action, presumably, to stem the overall conduct of which she alleges she is the victim.
10 The plaintiff submitted that the lens through which these allegations are to be seen is the primary allegation made by her in paragraph 5 of the Statement of Claim in which she uses the word “conspiracy” on the part of the Secretary and the other defendants to damage her professional reputation.
11 There are a number of serious problems with the Statement of Claim. I will now deal with these as follows.
12 Firstly, the Secretary is only liable for the torts of any servant or agent of the Crown. The plaintiff has failed to plead that the other defendants were servants or agents of the Crown, and the basis upon which the Crown is liable for their tortious conduct.[2]
[2]Section 23(1)(b) of the Crown Proceedings Act 1958
13 It is not entirely clear from the Statement of Claim whether all of the other defendants are servants or agents of the Crown. The plaintiff described each of the persons referred to in paragraph 6 and following as “personnel” or “staff members” from which it might be inferred that those words were intended to be an allegation of an employment relationship between the Secretary and the other defendants.
14 Next, there is no cause of action at common law of a conspiracy to cause personal injury. There is a cause of action at common law based upon persons who combine or conspire together with the intention to injure another. The injury is not personal injury, but injury which occurs in the context of trade and employment relations.[3]
[3]See Fleming’s The Law of Torts (10th ed), 2011, Lawbook Co, at paragraphs 30.190-30.210, and in particular McKernan v Fraser (1931) 46 CLR 343
15 Next, the thrust of the pleading is that the conduct of personnel and/or staff members resulted in her becoming “mentally damaged”. The nature of the allegations strikes me as being consistent with her perception of being placed under work stress or having been bullied and/or harassed.[4]
[4]For example Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 and Brown v Maurice Blackburn Cashman (2013) 45 VR 22
16 That being so, then the plaintiff is prohibited from bringing a common law claim for damages unless and until she satisfies the narrative test under Division 8A of the Accident Compensation Act 1985 or Division 2 of the Workplace Injury Rehabilitation and Compensation Act 2013. In either case, she must satisfy the definition of “serious injury” that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
Whistleblower legislation
17 The plaintiff sought to rely on the provisions of the Whistleblowers Protection Act 2001 (“the WPA”) and its successor, the Protected Disclosure Act 2012 (“the PDA”).
18 The plaintiff referred me to s19(1) and (2) of the WPA which provides that if a person takes action against a whistleblower in reprisal for a protected disclosure, then that person is liable in damages to the whistleblower. Damages are recoverable as for a tort in a court of competent jurisdiction.
19 The plaintiff referred me to the successor enactment and in particular, to s46 of the PDA which is in like terms.
20 The plaintiff submitted that her Statement of Claim could be read to characterise her as a whistleblower and the Secretary and the other defendants taking reprisals, thereby exposing them to an action for damages under either or both sections.
21 It is trite to say that the accepted convention in pleading is to conform to Rule 13 of the Rules, and in particular, to set out so much of the facts as identify the basis for allegations that there has been a breach of the civil law, to particularise the breach, and to identify the relief sought. There is nothing in the Statement of Claim pleading anything of the sort based upon the WPA or the PDA.
The invitation to replead
22 The plaintiff has been given an extraordinary indulgence both by the Court and the defendants in attempting to assist her to properly formulate her claim, if she has one. All of that is set out in the affidavit of Alyce Louise Watkins, solicitor, sworn 5 February 2018. Despite being warned that her Statement of Claim did not disclose a cause of action, despite directions hearings before judges of this Court, and despite attempts to negotiate a satisfactory conclusion through judicial mediation before a judicial registrar, the plaintiff persisted in reliance upon the Statement of Claim.
Civil Procedure Act 2010
23 The Secretary and the other defendants have applied for summary judgment pursuant to s62 of the Civil Procedure Act 2010 on the basis that the plaintiff’s claim has no real prospect of success.
24 I propose to accede to the application, because on the analysis I have made of the plaintiff’s Statement of Claim that there is no cause of action known as a conspiracy to injure in a personal injury context, and otherwise her claim is really one for injury arising out of or in the course of her employment which is prohibited unless she complies with the serious injury regime.
25 In the circumstances, I will order that the plaintiff’s proceeding be dismissed with costs.
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