Victoria Louise Sterne v Thfe Pty Limited t/as Tweed Health for Everyone Superclinic

[2022] NSWSC 450

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Victoria Louise Sterne v THFE Pty Limited t/as Tweed Health For Everyone Superclinic [2022] NSWSC 450

Hearing dates:

7 April 2022

Date of orders:

11 April 2022

Decision date:

11 April 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

The Amended Notice of Motion filed 8 July 2021 is dismissed.

The defendant is to pay the plaintiff’s costs of the Motion.

Catchwords:

ESTOPPEL – application to dismiss negligence claim as abuse of process – earlier proceeding in Federal Circuit Court under Fair Work Act – proceedings alleged victimisation for complaining about bullying and harassment – dismissed as plaintiff not a contractor to defendant – proceedings commenced in negligence for bullying and harassment – cause of action estoppel – rights in both proceedings – not substantially similar – Anshun estoppel – not established – it was not unreasonable not to bring negligence claim in accrued jurisdiction

Legislation Cited:

Civil Procedure Act 2005

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth)

Trade Practices Act 1975 (Cth)

Uniform Civil Procedure Rules2005

Work Health and Safety Act 2011

Cases Cited:

Bobridge v Choppair Helicopters Pty Limited [2016] FCCA 2301

Clarke v South Eastern Sydney Local Health District & Anor [2019] FCCA 3769

Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Conduit Advertising Pty Limited & Anor v Anderson & Anor [2010] FMCA 962

Helicopter Aerial Surveys Pty Limited v Bradford Marine Pty Limited [2020] FCCA 3238

Sterne v Tweed Health for Everyone Pty Ltd t/as Tweed Health For Everyone Superclinic & Ors [2019] FCCA 2540

Surf Life Saving Sydney Northern Beaches Incorporated v Garland [2019] FCCA 3228

Trawl Industries of Australia Pty Ltd (in liquidation) v Effem Foods Pty Ltd (1992) 36 FCR 406

Tomlinson v Ramsey Food Processing (2015) 256 CLR 507

Vance v State Rail Authority [2004] FMCA 240

Wilczak v Alpine Refrigeration & Air Conditioning Pty Limited [2004] FMCA 17

Wright v Norris Real Estate Pty Ltd [2016] FCCA 707

Category:

Principal judgment

Parties:

Victoria Louise Sterne (Plaintiff)
THFE Pty Limited t/as Tweed Health For Everyone Superclinic (Defendant)

Representation:

Counsel:
G Smith (Plaintiff)
A Horvath SC (Defendant)

Solicitors:
Lough & Wells Lawyers (Plaintiff)
Mills Oakley (Defendant)

File Number(s):

2020/00168329

Judgment

Revised from transcript

1. On 9 June 2020, the plaintiff, Victoria Louise Sterne, filed an amended statement of claim in this Court. She sues the defendant, THFE Pty Limited, trading as Tweed Health for Everyone Superclinic (“THFE”), for damages and negligence and breach of statutory duties imposed by the Work Health and Safety Act 2011 (the “WHS Act”).

2. By an amended notice of motion filed 8 July 2021, THFE seeks the dismissal of the proceedings under Uniform Civil Procedure Rules 2005 (the “UCPR”) r 13.4 on the basis that they are an abuse of process. THFE contends that these proceedings are barred by reason of a cause of action estoppel arising from a dismissal of proceedings commenced by Ms Sterne in the Federal Circuit Court, as it was then known, by Vasta J on 22 August 2019 (Sterne v Tweed Health for Everyone Pty Ltd t/as Tweed Health For Everyone Superclinic & Ors [2019] FCCA 2540). In the alternative, THFE contends that these proceedings are barred by the operation of an Anshun estoppel arising out of that dismissal (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; “Anshun”).

3. For the reasons that follow, I reject both contentions and will dismiss THFE’s amended notice of motion.

Background

4. The following facts are either common ground or the subject of findings by Vasta J, and thus binding on the parties. At various times from 2013 to 2017, Ms Sterne provided her services as a dietician from a room at a medical clinic situated at 33-35 Corporation Circuit, Tweed Heads. THFE operated the clinic. It seems that THFE was originally formed by three doctors; Ms Sterne’s husband, Dr Austin Sterne, as well as Dr Jennifer Soden and Dr Diane Blackensee. It seems that those three doctors also formed a company which owned the land upon which the clinic was located. Ms Sterne and her husband were directors of Sterne Medical and Legal Pty Ltd. Sterne Medical originally held one third of the shareholdings in THFE and the company that owned the land upon which the clinic was located.

5. At some point in the last decade, the three doctors became embroiled in a dispute which led to litigation in the Supreme Court of Queensland. It seems that this was resolved by a Deed dated 22 December 2017 which severed relations between Sterne Medical and THFE, as well as between the parties in relation to the company that owned the building upon which the clinic was located. In effect, the interests associated with Dr Soden and Dr Blackensee purchased the interests associated with Dr Sterne.

6. Ms Sterne alleges that between 2013 and 2017, she was subject to instances of bullying and harassment while working as a dietician in the room at the clinic operated by THFE.

Ms Sterne’s Claim In The Federal Circuit Court

7. In 2018, Ms Sterne commenced proceedings under the Fair Work Act 2009 (Cth) (the “FWA”) against THFE, Dr Soden and Dr Blackensee. In her original statement of claim, she pleaded that she was employed by THFE to provide dietetic services, or was engaged by THFE “as an independent contractor to provide dietetic services”. In March 2019, she filed an amended statement of claim which deleted the allegation that she was an employee.

8. Ms Sterne’s proceedings invoked the Federal Circuit Court’s power to make orders in respect of a contravention of a “civil remedy provision” as conferred by s 545(1) of the FWA. These orders included the power to award compensation for “loss that a person has suffered because of the contravention” (FWA s 545(2)(b)). The “civil remedy provision” said to have been contravened was s 340(1) of the FWA (see s 539) which provided:

(1)  A person must not take adverse action against another person:

(a)  because the other person:

(i)  has a workplace right; or

(ii)  has, or has not, exercised a workplace right; or

(iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1). …

9. It can be seen that sub-s 340(1) proscribes the taking of “adverse action” against another person. Adverse action is described in s 342. The relevant meaning of adverse action for Ms Sterne’s case was as follows:

Adverse action is taken by a person (the principal) who has entered into a contract for services with an independent contractor against the independence contractor, or a person employed or engaged by the independent contractor, if the principal:

(a) terminates the contract; or

(b) injures the independent contractor in relation to the terms and conditions of the contract; or

(c)  alters the position of the independent contractor to the independent contractor’s prejudice; or

(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(e)  refuses to supply, or agree to supply, goods or services to the independent contractor.

10. Subsections 340(1)(a)(i) and (ii) proscribe the taking of adverse action because the affected person “has a workplace right” or “has, or has not exercised, a workplace right”. To that end, sub-s 341(1) provided:

Meaning of workplace right

A person has a workplace right if the person:

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)  is able to make a complaint or inquiry:

(i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)  if the person is an employee—in relation to his or her employment.

11. Otherwise, it should be noted that the FWA reverses the onus of proof of that part of s 340 which provides that the adverse action must not be taken against another person because of one of the reasons set out in ss 340(1)(a) or (b).

12. A “workplace law”, as referred to in s 340(1), includes laws of a state dealing with occupational health and safety and thus included the WHS Act. A “workplace law” also included the FWA itself. In that context, s 789FC of the FWA enabled a worker to apply for an order under s 789FF in respect of instances of workplace bullying or sexual harassment.

13. Ms Sterne’s amended statement of claim in the Federal Circuit Court only sought to plead a case that relied on that part of the definition of adverse action which refers to a principal, i.e., THFE, entering into a contract for services with an independent contractor, namely herself. Her pleadings sought to justify the contention that she was so engaged.

14. Under the heading “Contravention of s 340,” her amended statement of claim identified her workplace rights as being her entitlement to the benefit of a duty allegedly imposed by s 28 of the WHS Act on THFE to take reasonable care for her safety, her right to make a complaint regarding the performance of that duty, as well as her right to make a complaint under s 789FC of the FWA.

15. The next part of her amended statement of claim pleaded that Ms Sterne exercised those workplace rights by making multiple bullying and harassment complaints, firstly to THFE, and then by making an application under s 789 of the FWA to the Fair Work Commission. The amended statement of claim then identified the “adverse action” taken against Ms Sterne; that is, the actions that “injured her in relation to the terms and conditions of her contract” or “altered her position to her prejudice”. The actions identified were the alleged disabling of her remote access to her appointments book and patients’ notes, placing her under workplace surveillance, and an allegation that on 22 December 2017 her contract for services was terminated.

16. Paragraphs 26 to 28 of her amended statement of claim relevantly pleaded that:

“26. On and from 18 March 2014, the first respondent was on notice that the applicant was being subjected to bullying and harassment in the workplace, yet did not stop the applicant from being subjected to the bullying and harassment referred to in the multiple bullying and harassment complaints from 12 May 2014 to 13 April 2017.

27. As a result of the conduct of the first respondent referred to in paragraph 26, the applicant was subject to bullying and harassment for the period of the multiple bullying and harassment complaint.

28. By reason of the matters pleaded in paragraphs 26 and 27, the first respondent took adverse action against the applicant within the meaning of s 342 of the FW Act…”

17. There was some debate about these paragraphs at the hearing of the amended notice of motion. It is correct, as Senior Counsel for THFE, Ms Horvath, contended, that [26] positively pleads that Ms Sterne was subject to bullying and harassment. However, it is also the case that these paragraphs do not assert that the harassment was itself the adverse action, as opposed to potentially being the reasons for the adverse action being taken against her.

18. The balance of the amended statement of claim pleaded that Dr Soden and Dr Blackensee were knowingly involved in the contraventions of s 340 of the FWA (see FWA s 550(2)) and pleaded that Ms Sterne suffered loss and damage, including hurt, distress and psychological harm “by reason of the adverse action”.

19. At this point and at the risk of repetition, two related matters should be noted about this pleading. First, as noted, the adverse action pleaded by Ms Sterne was the disabling of her remote access, being placed under surveillance, and the termination of her contract. She did not plead that the adverse action taken against her was the bullying and harassment itself. Second, Ms Sterne sought compensation for the adverse action that she pleaded. She did not seek compensation for the bullying and harassment that was the subject of her complaints.

Hearing and Judgment in the Federal Circuit Court

20. Ms Horvath took the Court through much of the affidavit material that was filed in the Federal Circuit Court and the transcript of the hearing. Four matters should be noted about that material. First, the affidavit material suggests that Ms Sterne had legal representation when the proceedings were commenced, but that at some time between October 2018 and March 2019, that representation ceased.

21. Second, in an affidavit sworn 24 July 2018, Ms Sterne addressed the forms of “adverse action” she claimed to have been subjected to. She identified them as being the removal of her remote access to the patient materials, receiving a notice that she was under surveillance, and the “termination of my employment” which, in context, can be understood as extending to the alleged termination of her engagement by THFE as a contractor.

22. Third, although Ms Sterne’s affidavit addressed the occasions when she complained about being subject to bullying and harassment, they did not describe the events said to actually constitute the bullying and harassment, or at least did not do so in any relevant detail.

23. Fourth, Ms Sterne appeared for herself at the hearing of the proceedings. Ms Horvath contended that in her opening to Vasta J she expanded on the conduct said to constitute the adverse action against her so as to include the alleged bullying and harassment which she said she suffered. I do not accept that contention.

24. At one point of the opening, his Honour asked Ms Sterne to identify the adverse action she claims to have been subjected to. Ms Sterne again referred to being denied remote access to her patient appointment book and of being placed under surveillance. There was then an exchange between Ms Sterne and his Honour concerning how she made complaints and no action was taken. His Honour then stated:

“HIS HONOUR: Well, it’s not that. See, you were saying that there is adverse action and you’re saying that the adverse action is that you made complaints and they didn’t act on those complaints which prejudiced you in the workplace. Now that’s what I’m - you see, in some ways, it’s hard to prove a negative, that they didn’t act on those complaints. So, what is it that you mean by they didn’t act on those complaints?

MS STERNE: Then I got - then I was subjected to bullying and harassment for that duration of time.

HIS HONOUR: All right, okay. What other adverse action?

MS STERN: And the last one is termination. So, they terminated - well, my contractor status on 22 December 2017, without agreement or notice.”

25. In that part of this exchange in which his Honour inquired “what other adverse action”, I took his Honour to be enquiring as to what other adverse action beyond the two specific forms that Ms Sterne had already identified, namely the removal of her remote access to electronic materials concerning the patients, and being placed under surveillance.

26. Otherwise, at most, this passage conveys Ms Sterne contending that because no action was taken on her complaints, she was subjected to bullying and harassment, but did not amount to some expansion of the pleaded case so as to make the bullying and harassment the adverse action itself. If that is what had truly been understood as happening at this point, then it can be expected that counsel for the respondents might have raised something about the expansion of the pleaded case. Moreover, to have done so would have made no sense in the context of s 340 of the FWA, and only required further scrutiny of her claim. It would have been entirely inconsistent with Ms Sterne’s case to that point to contend that she was bullied and harassed because she had or proposed to exercise a workplace right, in that it would only beg the question of what the workplace right was that led to the bullying and harassment.

27. Instead, from beginning to end, Ms Sterne’s case sought relief for the taking of the three forms of pleaded adverse action on the basis that they were taken because she exercised her workplace rights by complaining about (alleged) bullying and harassment.

28. This brings me to Vasta J’s judgement. Although it can be accepted that the hearing concerned all issues, the cross-examination of Ms Sterne and the witnesses appears to have been principally, but perhaps not exclusively, directed to the issue of whether Ms Sterne had established that she was contracted to perform services by THFE, which was the foundation of her pleading.

29. At the conclusion of her case, Vasta J heard what amounted to a “no case” submission. After receiving submissions, his Honour gave an ex tempore judgement dismissing her application. In short, his Honour did not accept that Ms Sterne was either an employee, or a contractor, retained by THFE.

Ms Sterne's Claim In This Court

30. In this court, Ms Sterne’s amended statement of claim pleads that the clinic was a “workplace” within the meaning of the WHS Act, that she was a “worker,” and that THFE had the management control of that workplace for the purposes of the WHS Act. Ms Sterne does not plead that she was an employee of THFE or a contractor engaged by it.

31. Paragraphs 11 to 13 of her amended statement of claim in this Court plead that in providing dietetic services from a room at the clinic, Ms Sterne was “subject to bullying and harassment by employees and agents enquired of THFE,” and that THFE is vicariously liable for that harassment. The particulars of that bullying and harassment indicated that they include the alleged bullying and harassment complained of by Ms Sterne in the Federal Circuit Court. However, the particulars also include as instances of bullying, the obstruction of her access to patient data, and her being subject to a notice of surveillance, which were two of the three instances of adverse action pleaded in the Federal Circuit Court proceedings.

32. The balance of the statement of claim pleads the constituent elements of a cause of action in negligence and breach of statutory duties imposed by the WHS Act. The particulars of negligence include engaging in bullying and harassment behaviour and failing to prevent that behaviour.

Cause Of Action Estoppel

33. As noted, THFE contends that Ms Sterne’s proceedings in this court are an abuse of process, either because they are precluded by a cause of action estoppel, or an Anshun estoppel.

34. In Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 (“Tomlinson”) [22] French CJ, Bell, Gageler and Keane JJ identified three forms of estoppel arising from a prior judicial determination, two of which are relevant to this motion, namely, cause of action estoppel and Anshun estoppel. The third form of estoppel their Honours identified, namely issue estoppel, precludes the raising in subsequent proceedings of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the earlier judgment. In this case, it was common ground that Vasta J’s determination estopped Ms Sterne from contending in later proceedings between herself and THFE that she was engaged by them as a contractor. Ms Sterne’s amended statement of claim filed in this Court does not so contend.

35. In relation to cause of action estoppel, in Tomlinson, their Honours stated (at [22]):

“Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding in which it was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power and where res judicata in the strict sense therefore applies to result in the merger of the right or obligations in the judgment.”

36. This form of estoppel was considered in Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44 (“Clayton v Bant”), where a husband contended that his wife was precluded from bringing an application for a property settlement and spouse maintenance under the Family Law Act 1975 (Cth) (“Family Law Act”) by reason of a cause of action estoppel and an Anshun estoppel arising out of divorce proceedings pursued by the husband in Dubai. In the Dubai proceedings, the marriage was dissolved and the wife was ordered to repay an “advance dowry” (at [8]). Dubai law made limited provision for distribution of property of parties to a marriage and the payment of alimony (at [10]). The Dubai Court appeared to proceed on the basis that the wife did not make or at least pursue a claim for alimony (at [9]).

37. In Clayton v Bant, Kiefel CJ, Bell and Gageler JJ identified the rights in issue in the proceedings in the Family Court as those rights created by the provisions of the Family Law Act “which confer a discretionary power on the Family Court to make an order of the kind that is sought” (at [25]).

38. The above passage from Tomlinson refers to a cause of action estoppel being rendered largely redundant where a final judgment gives rise to a merger by the operation of res judicata. However, that was not the case in Clayton v Bant, because the judgment of the Dubai Court could not possibly result in the statutory rights conferred by the Family Law Act merging in the Court’s orders (at [26]).

39. In relation to cause of action estoppel, their Honours stated at [34]:

“Founded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings), the focus of the common law doctrine of estoppel is on “substance rather than form“. The doctrine looks not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings. The doctrine looks rather for substantial correspondence between those rights. Enough for its operation is that the rights are of a substantially equivalent nature and cover substantially the same subject matter. A common law right to damages for negligent misstatement has been held to correspond to a statutory right to damages for misleading and deceptive conduct, for example, whereas a common law right to damages for personal injury has been held not to correspond to a common law right to damages for property damage arising from the same negligent conduct given that damage is a necessary element of a cause of action in negligence.” (references omitted)

40. Their Honours then referred to but rejected an approach favoured in the United States of treating “rights” precluded from assertion in subsequent proceedings as coterminous with the “transaction” which the early proceedings concerned as opposed to a consideration of whether the “rights” in issue in both proceedings are of a substantially similar nature (at [35]-[36]).

41. In Clayton v Bant, the Full Court of the Family Court was held to have erred in failing to consider whether the “actual rights” that were in issue in the Dubai Court were substantially similar to those being considered in that Court. On closer analysis, it was determined that those rights were limited to obtaining a deferred dowry for the husband and were not equivalent to those rights available to the wife under the Family Law Act (at [40]).

42. By contrast, their Honours approved (at [34]) the judgment of Gummow J in Trawl Industries of Australia Pty Ltd (in liquidation) v Effem Foods Pty Ltd (1992) 36 FCR 406, where his Honour concluded that there was a sufficient correspondence between recovery under a statutory right to damages for misleading and deceptive conduct and a common law right to damages for negligent misstatement to give rise to a cause of action estoppel. The analysis of the pleadings in that case by Gummow J was consistent with a “granular analysis” suggested by Kiefel CJ, Bell and Gageler JJ in Clayton v Bant at [36] (see also Edelman J at [68]).

43. In this case, counsel for Ms Stern contended that the judgment of Vasta J should be taken as no more than a determination that Ms Stern was not a contractor engaged by THFE. I reject that contention. In the present context, that submission confuses cause of action estoppel with issue estoppel.

44. A potentially more contentious question was whether his Honour’s judgment was truly a final judgement that was sufficient to give rise to either a res judicata or a cause of action estoppel. Under the UCPR and the Civil Procedure Act 2005 (the “CPA”), a determination at the close of a plaintiff case that there is no case to answer can lead to either a dismissal (UCPR r 29.9(1)) which would not give rise to a cause of action estoppel (see CPA s 91) or a judgment (UCPR r 29.10) which would do so. Which course is taken depends upon the elections made by the parties when the submission is made (see UCPR r 29.9).

45. I was not referred to any equivalent rules for the former Federal Circuit Court. There is nothing in the transcript of the hearings to suggest that the question of putting THFE to an election ever arose. In those circumstances, it appears that Vasta J’s dismissal did operate as a judgment sufficient to be able to give rise to a cause of action estoppel or a res judicata. That said, similar to Clayton v Bant, his Honour’s judgment did not result in a res judicata that precluded the proceedings in this Court. The rights that merged in that judgment were confined to Ms Stern’s rights under the FWA. She does not seek to vindicate those rights in this case. Nevertheless, are the rights, the subject matter of both cases, of a substantially equivalent nature and do they cover substantially the same subject matter?

46. In argument, Ms Horvath conceded that if the adverse action complained of in the Federal Circuit Court proceedings did not extend to the bullying and harassment that was alleged, then this aspect of the notice of motion failed. I have already determined that it did not so extend.

47. Moreover, I do not consider that the rights are of a substantially equivalent nature. The rights that Ms Stern pursued in the Federal Circuit Court was a statutory right to recover compensation for an infringement of the workplace rights conferred by the FWA. As a matter of substance, she was not seeking compensation for bullying and harassment, but instead seeking compensation for being injured as a contractor for complaining about bullying and harassment. By contrast, in this case, she is seeking damages in negligence and breach of statutory duty for being bullied and harassed, and for THFE failing to stop her being so bullied and harassed.

48. While Ms Sterne’s opening in the Federal Circuit Court referred to the latter as a matter of substance, that was not what she was seeking compensation for in that Court. Accordingly, I reject so much of THFE’s notice of motion that relied on cause of action estoppel to contend that the proceedings in this Court are an abuse of process.

Anshun Estoppel

49. In Tomlinson, French CJ, Bell, Gageler and Keane JJ described Anshun estoppel as follows (at [22]):

“Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact of law, if that claim or issue was so connected with the subject matter of the first proceedings as to have made it unreasonable in the context of that first proceeding for the claim not to have been made, or the issue not have been raised in that proceeding.”

50. THFE contended that it was open to Ms Sterne to amend her pleading in the Federal Circuit Court to include a claim in negligence, in the same or similar terms to her claim in this court. It contended that the Federal Circuit Court had an accrued jurisdiction under s 18 of the Federal Circuit Court of Australia Act 1999 (Cth) to hear and determine such a claim.

51. THFE further contended that it was unreasonable for Ms Sterne not to have brought such a claim. First, it noted that by the time Ms Sterne had commenced proceedings in the Federal Circuit Court, she no longer worked at the clinic, nor had any connection with THFE. That is, that at that time, there was no commercial relationship precluding her from the making of such a claim in the proceedings she then commenced.

52. Second, it was contended that the proceedings in this Court involve a determination of rights “which are of substantially equivalent nature and cover the same subject matter” as the rights asserted in the Federal Circuit Court proceedings. This is a proposition I have already rejected.

53. Third, it was contended that bearing in mind the costs and expenses that were deployed in the hearing in the Federal Circuit Court, the breakdown of the parties’ relationship and the fact that Ms Sterne had legal representation at the time she commenced those proceedings, it was unreasonable for her not to include a cause of action in negligence with her pleaded case under the FWA.

54. Fourth, it was contended that, in the absence of evidence from Ms Sterne about why she did not bring such a claim in the Federal Circuit Court, this Court should be more comfortably satisfied that her failure to do so was unreasonable.

55. One matter that arose during argument concerned the relative frequency in which the Federal Circuit Court has heard and determined claims of damages for personal injury occasioned by negligence, together with claims under Ch 3 of the FWA, such as those commenced by Ms Sterne. The parties were given a short period to file supplementary submissions concerning how regularly the Federal Circuit Court exercised its accrued jurisdiction in cases similar to this.

56. In his submissions, counsel for the plaintiffs stated he was unable to locate any decision of the Federal Circuit Court dealing with a claim for work injury damages, personal injury damages and negligence, or even any claim in negligence, as well as for the vicarious liability of employers for the acts or omissions of their employees. Ms Horvath had more success. Her efforts located a number of cases where a claim in negligence for property damage or economic loss was either brought in the Federal Circuit Court’s original Admiralty jurisdiction (Helicopter Aerial Surveys Pty Limited v Bradford Marine Pty Limited [2020] FCCA 3238; Surf Life Saving Sydney Northern Beaches Incorporated v Garland [2019] FCCA 3228) or in its accrued jurisdiction along with a claim under the former Trade Practices Act 1975 (Cth) (Conduit Advertising Pty Limited & Anor v Anderson & Anor [2010] FMCA 962; Wilczak v Alpine Refrigeration & Air Conditioning Pty Limited [2004] FMCA 17).

57. Ms Horvath’s research identified one case where a negligence claim for psychiatric injury was accrued to a claim under the Disability Discrimination Act 1992 (Cth) (Vance v State Rail Authority [2004] FMCA 240). Ms Horvath also identified two cases where negligence cases were considered with a claim under the FWA. In Bobridge v Choppair Helicopters Pty Limited [2016] FCCA 2301, an employer brought a cross-claim in negligence against an employee suing them under the FWA. In Clarke v South Eastern Sydney Local Health District & Anor [2019] FCCA 3769, the Federal Circuit Court declined to reinstate a moribund claim that pleaded a cause of action under the FWA and a claim in negligence. My research did not add to that list, although I note that scepticism was expressed about accruing a negligence claim to a claim under the FWA in Wright v Norris Real Estate Pty Ltd [2016] FCCA 707 at [9].

58. While I do not treat the cases that I was referred to by Ms Horvath as a complete or exhaustive set of all the cases in which the accrued jurisdiction of the Federal Circuit Court was invoked to consider an action in negligence, it seems clear that it is a relatively rare case in which that Court hears and determines an action under Ch 3 of the FWA by an affected employee or contractor together with a claim for personal injury damages arising out of the same employment or engagement. This is not surprising in that they are very different forms of action. One is concerned with vindicating an employee or contractor’s ability to exercise their workplace rights, and the other with compensating them for being injured by reason of a breach of a duty of care.

59. As explained earlier, the litigation commenced in the Federal Circuit Court by Ms Sterne was very much concerned with the former. As extensive as the evidence that was filed in the Federal Circuit Court was, it was focussed on the fact that Ms Sterne complained about bullying and harassment, no doubt with a view to invoking the reverse onus of proof that I referred to earlier, in order to demonstrate that she was injured in her employment or engagement because of those complaints. To have amended her claim to seek damages for the actual bullying and harassment, based upon the existence of a duty of care that either was or was not dependent on her demonstrating she was an employee or contractor engaged by THFE, would have been a significant expansion of her case and no doubt prompted a significant expansion of THFE’s response.

60. Such a case would have necessitated a different causation enquiry as to whether she suffered distress and psychiatric harm from being bullied and harassed, as opposed to suffering such harm from being victimised for complaining about being bullied and harassed. Leaving aside whether or not such a claim would have fallen within the accrued jurisdiction of the Federal Circuit Court, it certainly would have been a relatively novel, although not necessarily unprecedented, claim for that Court to consider.

61. In these circumstances, and notwithstanding the absence of evidence from Ms Sterne to explain her litigation choices, THFE has not demonstrated that she acted unreasonably in not pursuing a claim in negligence in the Federal Circuit Court proceedings that corresponds in substance with the claim that she has brought in this Court (see Clayton v Bant at [30]). It follows that I will dismiss the amended notice of motion filed 8 July 2021.

[The Parties Addressed As To Costs]

62. The plaintiff now seeks the costs of the motion that I have just dismissed on an indemnity basis. The plaintiff relies on two offers of compromise: one served on 14 July 2021, and the other served on 23 March 2022. The offers were in the same terms in that they sought an order that the motion be dismissed, and each party pay their own costs of and incidental to the motion. The defendants seek to resist the strict application of the rules, in relation to the offer of 23 March, by noting that it was not served more than 28 days before the hearing of the motion. They contend that those parts of the UCPR that deal with service of notice of compromise at a later time, are related to the final hearing of the matter, and not an interlocutory hearing. I accept that contention.

63. In relation to the offer of compromise of 14 July 2021, the defendant submits that, at the time it was served, there has been no evidence from the plaintiff in response to the notice of motion, and there was no explanation of the basis for resisting the notice of motion of dismissal, and thus no material upon which it could assess the reasonableness of the offer. I also accept that contention. It follows that the question of whether costs will be paid on an indemnity basis is therefore a question for my discretion.

64. The principal difficulty with awarding costs to Ms Sterne on an indemnity basis is that, as Ms Horvath pointed out, the issues that were raised in relation to the defendant’s motion only emerged at the hearing. The main point taken on behalf of the plaintiff was that Vasta J’s judgment did not, in effect, amount to a final judgment of the kind that would give rise to a cause of action or Anshun estoppel. I rejected that proposition. Bearing that in mind, I will not make an order for indemnity costs. Instead, I order the defendant to pay the plaintiff’s cost of the motion.

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Amendments

13 April 2022 - Minor amendments to Catchwords

Decision last updated: 13 April 2022