Waters v Commonwealth of Australia
[2012] NSWSC 790
•13 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Waters v Commonwealth of Australia [2012] NSWSC 790 Hearing dates: 31 May 2012 Decision date: 13 July 2012 Before: Barr AJ Decision: Second further amended statement of claim struck out
Legislation Cited: Uniform Civil Procedure Rules 2005
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Public Service Act 1999 (Cth)
Occupational Health and Safety Act 1991 (Cth)
Privacy Act 1988 (Cth)Cases Cited: Austral Pacific Group Ltd v Air Services Australia [2000] HCA 39; (2000) CLR 136
McGuirk v The University of New South Wales [2009] NSWSC 1424
Wearne v Southern Cross University [2006] FCA 1033
Horton v Jones (No. 2) (1939) 39SR (NSW) 305
Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471
Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297Category: Principal judgment Parties: Natalie Elizabeth Waters (Plaintiff)
Commonwealth of Australia (Australian Taxation Office) (Defendant)Representation: Natalie Elizabeth Waters (In person)
K Eastman & T Glover (Defendant)
DLA Piper (Defendant)
File Number(s): 2010/367053
Judgment
HIS HONOUR: By its notice of motion filed on 24 October 2011 the defendant, Commonwealth of Australia (Australian Taxation Office) seeks against the plaintiff, Natalie Elizabeth Waters, the following orders -
"1Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, the Plaintiff's claims contained in her Further Amended Statement of Claim filed on 31 August 2011 be dismissed.
2In the alternative to order 1, pursuant to rule 14.28 of Uniform Civil Procedure Rules 2005, the Plaintiff's Further Amended Statement of Claim filed on 31 August 2011 be struck out.
3The Plaintiff pay the Defendant's costs of this motion."
The plaintiff was employed by the Australian Taxation Office between 8 February 2000 and 24 November 2006. During that time she fell ill and lost time at work. She believed, perhaps as a result of the illness from which she suffered that she was being unfairly treated by the defendant and its officials. She raised many complaints about the manner in which she was treated during her employment. She remained dissatisfied after the cessation of her employment. On 5 November 2010 she commenced these proceedings by filing an amended statement of claim. It was a formidable document, running to 297 paragraphs over 87 pages. In it the plaintiff claimed damages in contract and tort, damages in equity, punitive damages, interest and costs. The amended statement of claim narrated a convoluted combination of fact, opinion and law. The appearance of the document suggests that it was not drafted with the benefit of legal advice.
With the amended statement of claim the plaintiff filed a notice of motion seeking the following orders -
"1Payment of final entitlements, outstanding since cessation of employment on 22 November 2004 (per paragraphs 119 to 214 and 227 to 234 of Statement of Claim).
2Interest on any final entitlements ordered pursuant to section 100 of the Civil Procedure Act."
The defendant has at all material times been represented by a firm of solicitors called DLA Piper. The solicitor having the carriage of the matter was Ms Trembath. On 24 November 2010 Ms Trembath wrote to the plaintiff a letter including the following passages -
"We refer to the amended Statement of Claim filed on 5 November 2010,
It is our view that the pleading is hopeless and embarrassing (in a legal sense) and fails to identify any proper cause of action.
The Statement of Claim does little more than provide a narrative of facts and does not seek to identify any legal claim in respect of the application.
Further, the claim alleges contraventions of a number of Commonwealth laws. It is highly questionable that the Supreme Court would have any jurisdiction to determine claims based on the alleged contravention of Commonwealth laws.
We invite you to discontinue the claim on the basis that each party bears its own costs. We also encourage you to seek legal advice about your claim. Should you wish to accept this offer please contact Donna Trembath by midday on 1 December 2010."
There was an exchange of correspondence between the plaintiff and Ms Trembath and on about 3 December 2010 the plaintiff appointed Ms D Riggio to be her solicitor in the proceedings. Ms Trembath and Ms Riggio corresponded and agreed on orders to amend. Consent orders were made on 9 December 2010 which required the plaintiff, inter alia, to file and serve an amended pleading by 14 February 2011.
On 9 October 2010 Ms Riggio ceased to represent the plaintiff. Between then and 18 March 2011 the plaintiff had no solicitor to act for her. A good deal of correspondence passed between her and Ms Trembath, mainly concerning an attempt to arrange a mediation conference. On a number of occasions the plaintiff foreshadowed her appointment of another solicitor.
On 18 March 2012 the plaintiff informed Ms Trembath by letter that she was appointing Harmers Workplace Lawyers to represent her.
On 23 March 2011, at a third directions hearing, the matter was stood over generally to allow for a mediation to occur. It was re-listed for directions on 27 April 2011.
On 24 March 2011 Mr Peter Ferraro of Harmers Workplace Lawyers wrote to Ms Trembath about the proposed mediation. Unfortunately the attempt to arrange mediation was unsuccessful. Mr Ferraro never went on the record as acting for the plaintiff.
On 27 April 2011, at the fourth directions hearing, it was noted that the plaintiff had withdrawn her notice of motion. She was directed to file any further amended statement of claim by 29 June 2011.
On 2 June 2011 Sylvester Browne Lawyers informed Ms Trembath that they were instructed in the matter. On 29 June 2011 they forwarded a copy of a further amended statement of claim filed on that day. Mr David Sylvester went onto the record as the plaintiff's solicitor.
Letters were exchanged between solicitors requesting and supplying particulars of the further amended statement of claim. Ms Trembath expressed dissatisfaction about the particulars provided and drew attention to ss44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"), which obligated the plaintiff, in the circumstances of the present claim, to make a written election before bringing any action for damages for non-economic loss, failing which, by s44, no action lay against the Commonwealth of Australia in respect of an injury sustained by an employee in the course of employment. Particulars of the plaintiff's election were requested.
On 3 August 2011 Mr Sylvester, having obtained counsel's advice, wrote agreeing to amend the plaintiff's pleading.
On 11 August 2011, at a fifth directions hearing, orders were made by consent including a direction that the plaintiff file and second further amended statement of claim by 31 August 2011.
On 26 August 2011 the plaintiff wrote to Ms Trembath informing her that Mr Sylvester was no longer representing her and that there would be a change of legal representative. In due course Mr Sylvester went off the record.
On 1 September 2011 the plaintiff delivered a second further amended statement of claim to Ms Trembath.
On 7 September 2011 Ms Kelly Godfrey of Employment Lawyers Australia Limited told Ms Trembath that she would be assisting the plaintiff. Correspondence was exchanged.
On 15 September 2011 Ms Trembath wrote to Ms Godfrey expressing concerns about the second further amended statement of claim. Ms Godfrey did not respond. The defendant decided to re-list the matter for directions pursuant to leave already granted.
On 29 September 2011 Ms Godfrey wrote to say that she was not representing the plaintiff. Ms Trembath notified the plaintiff of the re-listing date.
On 17 October 2011, at the sixth directions hearing, an existing direction as to the filing of a defence was vacated and leave was granted to the defendant to file a notice of motion to strike out the second further amended statement of claim. So the present notice of motion was filed.
An action for damages against the Commonwealth: the effect of s 44
The first ground on which the motion is brought is that the plaintiff has not elected under the provisions of s 45 of the Act to institute the present action for damages for non-economic loss. So, by s 44 of the Act, no action for damages lies against the Commonwealth.
There is in force under the act a scheme to compensate Commonwealth employees for injuries received in the course of their employment. See generally Part II of the Act and particularly ss 24, 25, 27. It is a comprehensive scheme, said to be generous. An injured employee does not have to seek compensation under the Act, however, and can instead sue for damages under the general law. But the Act prevents an injured employee seeking compensation both under the Act and under the general law. If an employee wishes to proceed at law the employee must choose to do so. An employee so choosing forgoes the right to seek compensation under the Act. Sections 44 and 45 of the Act are as follows -
Section 44
Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
(3) If:
(a) an employee has suffered an injury in the course of his or her employment; and
(b) that injury results in that employee's death;
subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first-mentioned employee.
(4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1).
Section 45
(1) Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.
(5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non-economic loss
Section 44 denies from the outset the existence of a cause of action in respect of relevant events. It is a substantive, not a procedural, provision. Its effect is not, to bar an action but to extinguish it: Austral Pacific Group Ltd v Air Services Australia [2000] HCA 39; (2000) CLR 136 per Gleeson CJ, Gummow and Hayne JJ at [21].
It is common ground that the plaintiff was an employee entitled to seek compensation under the Act for injuries sustained at work.
"Injury" is defined in s 5A as follows -
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Disease is defined in s 5B -
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
Section 4 defines "ailment" to mean any "physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)".
The loss and damage pleaded in the second further amended statement of claim are set out as follows -
106 The Plaintiff has suffered and/or currently suffers and/or will continue to suffer the following loss and damage:
(a)extreme harm and suffering: profound exacerbation/aggravation of her compensable mental illness to the point of total incapacity for three years continuously;
(b)fear, stress, anxiety, nervous shock, isolation, recurrent thoughts of, and attempts at self-harm;
(c)personal affront, humiliation, degradation, injury to reputation;
(d)loss of self-confidence, self-worth and personal dignity (including extended loss of privacy pertaining to medical matters by reason of the Defendant's deliberate misconduct);
Natalie Waters - Statement of Claim43
(e)indignity of being directed to consult with different doctors for the Defendant and Comcare;
(f)feeling personally violated, by reason of (d) and (e);
(g)loss of many years of productive working and loss of opportunities generally, living at the peak time in her life;
(h) loss of domestic and personal relationships; and loss by reason of
strain on the Plaintiffs domestic and personal relationships generally;
A(i) loss of lucrative job prospects and diminished career opportunities,
and a career the Plaintiff once took great pride in for the Defendant, a career that had great potential, in a Commonwealth government agency for which she once held great respect and high esteem;
(j) loss of ability for the Plaintiff to finish postgraduate taxation law studies at the Defendant's expense and with its support, in order to augment and secure her coveted career in taxation law;
(k) protracted financial duress, including stress of likelihood of losing her home (mortgage commitment);
(1) worry and indignity of having to survive on Centrelink benefits at intervals awaiting for insurance, extensive financial reliance on her parents;
(m) medical expenses to treat the Plaintiffs OCD, not covered by Comcare, private insurance or Medicare;
(n) Loss of confidence in the Defendant as taxation administrator in regard to the Plaintiffs personal privacy, confidentiality of her taxation affairs and to be treated without prejudice and bias as a taxpayer at all times;
(o) Legal costs, during and after cessation of employment.
While there may be doubts whether all the particulars of loss and damage pleaded in paragraphs 106 of the second further amended statement of claim are capable of being compensable at law if liability be established in the defendant, some of them appear to be. Examples are exacerbation or aggravation of a compensable mental illness, nervous shock and medical expenses of treatment: see paras (a), (b) and (m).
The plaintiff submits that the intent and purpose of s 44 are not such as to affect her claim. She draws attention to the definition of injury in s 5 and to the exception for disease, injury and aggravation suffered as a result of reasonable administrative action. Her written submission continues -
"16.1...By reason, this means that the commonwealth may not use the definition of 'injury' in a favourable manner to bar claims made against it. To do so means that the Commonwealth is seeking an entirely different regime to other litigants by placing itself above the rule of law.
16.2 Further, the definition of 'injury' per the SRC Act is not an 'an available one' open to flexible interpretation. The specific definition is provided within the text, it has a 'single fixed meaning'. More broadly speaking, adherence 'to the text has a constitutional foundation'."
Reference is made to a paper on statutory interpretation. The plaintiff concludes as follows -
"19. To be clear: the Plaintiff does not contend that the Defendant's 'administrative action' was reasonable at any time. Rather, relevantly the Plaintiff submits that the application of s 44 has its limitations by its own exclusions. The Defendant has failed to acknowledge this in its submissions."
It seems possible that the plaintiff has misunderstood the meaning of "reasonable administrative action". The present form of the exclusion was inserted by an amending Act of 2006. A Regulation Impact Statement published contemporaneously said this -
"The SRC Act aims to prevent compensation claims being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of reasonable disciplinary action or a failure to obtain a promotion, transfer or benefit in connection with the employee's employment".
Although, as I shall explain, it is far from easy to understand how the plaintiff frames her claim, I do not understand it to include compensation for the consequences of legitimate management action as there explained.
The plaintiff goes on to distinguish her claim in intentional tort, which is for damages "for intentional acts of wrongdoing after she sustained her injury". Her claim for such damages, she asserts, falls outside the purview of s 44. Reference is made to Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471 and to Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297.
Finally the plaintiff deals with what she asserts is the purpose (policy) of s 44 and submits that it was not enacted to accord immunity to the Commonwealth Crown, something the defendant has attempted to accord to itself. After referring again to the judgments of the justices of the High Court of Australia in Commonwealth of Australia v Mewett the plaintiff concludes thus -
"29. The Plaintiff submits that she has succeeded in her arguments against s 44 of the SRC Act on the tests of text, context and purpose (policy). The Plaintiff further submits that all three are necessary to effect accurate interpretation of the meaning of s 44. this particularly true given the complex and contentious character of this provision. By reason, the Plaintiff contends that the Defendant's submissions regarding s 44 must fail.
30. The Plaintiff has not responded to the Defendant's requests for 'any written election' per s 45 of the Act, by reason that the Plaintiff has abandoned it as being irrelevant. Indeed, it is the Defendant's case that the only remedy for damages available to the Plaintiff is for her to subscribe to s 45." (footnotes omitted)
It seems to me that as they apply to the present case ss 44 and 45 are clear in their meaning. The plaintiff had a choice whether to seek benefits under the Act scheme or to proceed outside the Act. Before taking the latter course she had to elect. She has not elected. On the contrary, she has claimed and has already received benefits under the Act. I conclude that in so far as her claim is for non-economic loss, therefore, her cause of action has been extinguished by s 44.
The general state of the pleadings
The second ground of the application complains of the way in which the plaintiff's claim is pleaded generally. Rule 13.4 of the Uniform Civil Procedure Rules 2005 ("the Rules") is as follows -
"(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
Rule 14.28 is as follows -
"(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
I gratefully adopt statements made by Johnson J as to the principles concerning pleadings. In McGuirk v The University of New South Wales [2009] NSWSC 1424 his Honour said this -
"[21] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 296 and 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] 148 CLR 658 at 664; Banque Commerciale at 296.
[22] In Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.
...
[24] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005.
[25] Where application is made by a party for leave to amend pleadings, the court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.
[26] The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].
[27] For a Statement of Claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: r 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: r 14.8 UCPR."
Dealing with embarrassing pleading his Honour said this -
"[30] A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70; Gunns Ltd v Marr at [14]-[15].
[31] In Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:
Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.
[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, BC9504276 at 5-6).
...
[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976; Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186.
[35] It is not the function of the court to draw or settle a party's pleading. The court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87-88 and 97-98; Gunns Ltd v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55]."
The plaintiff's claim in contract is set out in paras 87-95 of the pleading, thus -
"During the Plaintiffs employment
87. The terms under which the Plaintiff was employed by the Defendant were unequivocally and unambiguously express by statute.
Particulars
See paragraphs 5 to 7.
88. By reason of the conduct pleaded at paragraphs 15 to 86 above, the Defendant held a contumelious disregard for, and breached the terms and conditions of the Plaintiffs statutory contract, including the following provisions:
ATO (General Employees) Agreement 2004: certified on 1 July 2004
(a) Sub-clauses 110.3,110.4 and 110.8, pertaining to 'Automated Employee Monitoring';
(b) Sub-clause 118.1 pertaining to the ' Code of Conduct';
(c) Sub-clauses 119.1, 119.2 and 119.6 pertaining to 'Anti-Discrimination';
(d) Sub-clauses 120.1, 120.3 and 120.4 pertaining to 'Workplace Diversity';
(e) Sub-clauses 121.1 and 121. 2 pertaining to 'Occupational Health and Safety (OH&S)';
Public Service Act 1999
'-SECT 10 APS Values'
(f) The APS Value at paragraph 10(l)(c) providing for a discrimination-free workplace;
(g) The APS Value at paragraph 10(l)(d) proclaiming that the APS 'has the highest ethical standards';
(h) The APS Value at paragraph 10(l)(h) proclaiming that the APS 'has leadership of the highest quality';
(i) The APS Value at paragraph 10(l)(j) proclaiming that the APS 'provides a fair, flexible, safe and, rewarding workplace';
' -SECT 13 APS Code of Conduct'
(j) The APS Code of Conduct at subsection 13(1) directing employees to 'behave honestly and with integrity';
(k) The APS Code of Conduct at subsection 13(3) directing employees to 'treat everyone with respect and courtesy, and without harassment';
(1) The APS Code of Conduct at subsection 13(4) directing employees to 'comply with all applicable Australian laws';
(m) The APS Code of Conduct at subsection 13(9) directing employees not to engage in 'false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment';
(n) The APS Code of Conduct at paragraph 13(10)(b) directing employees not to 'make improper use of: the employee's duties, status, power or authority' for a 'benefit or advantage for the employee or for any other person';
(o) The APS Code of Conduct at subsection 13(11) directing employees to engage in behaviour which 'upholds the APS Values and the integrity and good reputation of the APS';
Safety, Rehabilitation and Compensation Act 1988 ("SRC Act")
(p) Section 41 of the SRC Act, pertaining to the rehabilitation obligations of the ATO, as employer and post-employment (under incapacity).
See paragraph 106.
89. By reason of the Defendant's repeated, deliberate breach of contract, the Plaintiff suffered loss and damage.
...
After cessation of the Plaintiffs employment
90. After cessation of the Plaintiffs employment with the Defendant (22 November 2004), until all Comcare benefits ceased on 23 November 2006, she was still considered an employee at all
material times (pursuant to paragraph 5(4)(b) of the SRC Act.
91. By reason, the Defendant held jurisdiction over the Plaintiffs rehabilitation (as 'rehabilitation authority'), pursuant to section 4(d) of the SRC Act.
92. By reason of paragraph 90 and 91, the Plaintiff was legally bound under contract with the Defendant, as it was to her, in so far as to the formation of such contract, as conferred under the SRC Act.
93. By reason of the Defendant's contumelious disregard to resolve matters residual to the Plaintiffs employment, it breached this contract, by vitiating the express provisions of it
94. The Defendant's officers knew (or ought to have known) by reason of direct responsibility and receipt of medical reports (through its delegated officer, Burgess) the detrimental effects the extended delay in resolving such residual matters were having on the Plaintiffs compensable mental illness.
95. By reason of the conduct which is pleaded at paragraphs 92 to 94, the Defendant breached the contract after cessation of the Plaintiffs employment, causing her to suffer loss and damage."
The claim in tort is pleaded thus -
"Failure to provide safe system of work
96. The Defendant, as the Plaintiffs employer, was required under its duty of care to protect her from transgressions against her basic civil rights and avoidable injury to the Plaintiffs person or reputation.
97. The Defendant intentionally, strategically, deceitfully, contumeliously and flagrantly failed to safeguard the Plaintiffs health and well-being at work, as it was required to do under its standard duty of care.
98. By choosing to so act as pleaded in paragraphs 15 to 86, the Defendant breached its duty of care to Waters, causing her loss and damage.
...
Intentional tort to the person: trespass
Intentional tort to the person: nervous shock
99. Officer for the Defendant, van Blommestein intentionally, contumeliously and deliberately furtively followed and intimidated the Plaintiff. Van Blommestein admitted to the Plaintiff and under formal questioning, that he chose to so act, without regard to her well-being, or contrition.
100. The Defendant's upper management was deliberately and wilfully defiant in its decisions to not control or suppress the actions of its lower management; despite van Blommestein's admissions made without influence or contrition.
101. The ATO Executive chose to not direct van Blommestein's superiors to act accordingly to ensure the Plaintiffs safety. The Defendant knew by reason of the Plaintiff s numerous oral and written pleas for help, the debilitating effects van Blommestein's misconduct had on her general well-being and state of mind.
102. By reason of van Blommestein's misconduct and by reason of the Defendant choosing to so act as in paragraphs 15 to 86, the Plaintiff suffered loss and damage."
The claim in equity is pleaded as follows -
"Deliberate 'unconscionable conduct' during employment
103. By reason of the Defendant being one of the largest Commonwealth government employers, the Plaintiff assumed that her employment would reflect the existence of, and compliance with the GEAA 2004 (as a certified agreement) the PS Act (in particular "The APS Code of Conduct' and 'APS Values') and the SRC Act.
104. The Plaintiff held expectations that the Defendant would safeguard its employees stringently from avoidable risk of injury, by reason of "leading by example" and to not effect an implied conflict of interest.
105. The Plaintiff was mislead (sic) by the Defendant by reason that the Plaintiff was induced into believing, and relied upon:
(a) Oates commissioning Thompson to investigate the allegations, and that her substantiated, serious complaints of continued abuse, intimidation and harassment, inter alia, by van Blommestein, would be properly and sufficiently handled in accordance with the relevant laws, internal policies, practices and procedures.
(b) that the Defendant would assist in the Plaintiff s recovery and rehabilitation from a serious, compensable mental illness, and that the Defendant would not continue to defiantly aggravate it, using the premise of 'reasonable administrative action'.
(c) that the Defendant, through representation by its senior officers, would comply with established, binding legal principles of the rules of Natural Justice and Procedural Fairness and that those principles would be upheld regarding investigation and the 'Determination' of the 'Suspected Breach of the APS Code of Conduct'.
(d) that the Plaintiff should expect to be treated fairly and that reasonable adjustments would be made for her in the work environment.
(e) that the Defendant would not choose to so act outside of the spirit of any law, such as the abuse of regular threats of breaches of the APS 'Code of Conduct' at any time, without sound reason, to intimidate her; as the weaker, vulnerable party.
(f) that there would exist checks and balances to prevent such widespread, systemic, systematic, flagrant abuse of power within the management of the Defendant."
The defendant's breaches of contract are alleged to have been constituted by the matter pleaded in paragraphs 15 to 86 inclusive. Those paragraphs cover 33 pages in which a series of events is asserted involving the activities of a dozen or more officials or employees of the Australian Taxation Office between 14 April 2004 and February 2008. It also appears that the plaintiff alleges breach of statutory duties under the Occupational Health and Safety Act 1991 (Cth), the Public Service Act 1999 (Cth), the Privacy Act 1988 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth). Injury to reputation is also pleaded, although there appears to be no action in defamation. The pleading is far too long, detailed and tortuous to include in this judgment. I incorporate it by reference.
By paragraph 88 the plaintiff asserts that the defendant "held a contumelious disregard for and reached the terms and conditions of the plaintiffs statutory contract. The terms of that contract are not defined but are said to include the ATO (general employees) agreement 2004, called the Certified Agreement, the Public Service Act 1999 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth).
As I have said the breaches in contract are said to have come about by reason of the conduct pleaded in paragraphs 15 to 86. However, apart from specific references to certain paragraphs of the Certified Agreement and of the Public Service Act 1999 (Cth) the defendant has no means of telling which of the paragraphs are said to involve alleged breaches of contract.
Counsel for the defendant submits that in that respect the second further amended statement of claim is embarrassing. I agree. The claim as pleaded is at once convoluted and vague. It fails clearly to state a case that must be met by the defendant. Having read the whole of it, I am unable to ascertain precisely how the plaintiff frames her case in contract. I do not think that the defendant should be put to the difficulty of working out from the morass whether the plaintiff has a cause of action for breach of contract or precisely or what the action might consist of. See also the remarks of Branson J in Wearne v Southern Cross University [2006] FCA 1033 at [27].
The claims in tort are said to be grounded in the events described in the same long assertion of events. Although there is an assertion that the defendant failed to provide a safe system of work the second further amended statement of claim fails to plead that the workplace was not healthy or safe, what steps the defendant ought to have taken to make it safe, the failure to take those steps, and what a reasonable employer in the position of the defendant would have done.
As to the intentional torts of trespass and nervous shock, it does not appear how the defendant could be responsible for the deliberate and wilful defiance of its "upper management" in its decisions not to control or suppress the actions of its "lower management".
As to the claim in equity, paragraphs 103 to 105 appear to me to disclose no cause of action.
The disposal of the motion
It is far from clear to me whether the plaintiff has a maintainable cause of action against the defendant. If she has, she has failed to make clear how it arises. The originating document, called an amended statement of claim, was, I think, of her own drafting. The document now under attack is of her own drafting. Unfortunately she lacks the ability to draft a document that is likely to comply with the rules of pleading. During debate the plaintiff acknowledged, at least in minor respects, the need for the second further amended statement of claim to be amended. I am satisfied, however, that she was far from convinced that the document failed generally to comply with the ordinary requirements of the court.
I raised the question of amending yet again so as to explore whether there were any prospect of her pleading her case in an acceptable way. I regret to say that I think that there is none. The plaintiff cannot do the job herself. She has now appointed, or at least sought assistance from, four solicitors.
The present notice of motion was filed in October last year. The defendant's outline of submissions was filed in the following month. I heard the case more than six months later. By then the plaintiff still had no solicitor and no plan to amend. I explored with her the possibility of her engaging a solicitor whose expertise I considered essential. She gave me no reason to believe that she could or would engage such a person.
I regret to say that I see no point in giving the plaintiff any further chance to amend. I think that it would be futile to do so. See Horton v Jones (No. 2) (1939) 39SR (NSW) 305.
The second further amended statement of claim is struck out. I order the plaintiff to pay the defendant's costs.
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Decision last updated: 13 July 2012
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