Wilkinson v Healthscope Operations Pty Ltd
[2020] FCCA 343
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILKINSON v HEALTHSCOPE OPERATIONS PTY LTD | [2020] FCCA 343 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – no appearance by the applicant at scheduled directions hearing – costs orders and dismissal order sought by the respondent and putative respondents – applicant must be present to propound her case in this Court – costs orders granted – directions hearing relisted for a later date to provide applicant the opportunity to appear. |
| Legislation: Fair Work Act 2009 (Cth), s.570 Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | LEAH MAREE WILKINSON |
| Respondent: | HEALTHSCOPE OPERATIONS PTY LTD |
| Putative Respondent: | NEW SOUTH WALES MINISTRY OF HEALTH |
| Putative Respondent: | FAR WEST LOCAL HEALTH DISTRICT |
| File Number: | MLG 2459 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| No appearance by or on behalf of the Applicant. |
| Counsel for the Respondent: | Mr K. Veloso |
| Solicitors for the Respondent: | Lander & Rogers |
| Counsel for the Putative Respondents: | Ms C. Wilkinson |
| Solicitors for the Putative Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The matter is listed for directions on 21 February 2020 at 9:30am in Court 9.2, 80 William Street, Sydney, before Judge Dowdy.
The Respondent and Putative Respondents are to notify the Applicant of the terms of these orders.
The Applicant is to pay the costs thrown away of today of the Respondent in the sum of $1,000.
The Applicant is to pay the costs thrown away of today of the New South Wales Ministry of Health and the Far West Local Health District in the sum of $1,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 2459 of 2019
| LEAH MAREE WILKINSON |
Applicant
And
| HEALTHSCOPE OPERATIONS PTY LTD |
Respondent
NEW SOUTH WALES MINISTRY OF HEALTH
Putative Respondent
FAR WEST LOCAL HEALTH DISTRICT
Putative Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
This proceeding commenced in the Melbourne Registry of the Court on 30 July 2019, and is in short a claim under the Fair Work Act 2009 (Cth) (FW Act) in which the Applicant, who appears in person, seeks financial compensation against the Respondent of $1,063,454.47 for loss of income and 6.5 years of earnings. On the application of the Respondent, a Registrar of the Court in Melbourne on 28 August 2019 transferred the matter to the Sydney Registry and it was docketed to me.
Prior to 27 September 2019 the Applicant indicated that she wanted to join the New South Wales Ministry of Health and the Far West Local Health District, and they have been referred to in the proceeding as the Putative Respondents.
On 27 September 2019 I ordered that the Applicant “file and serve a Statement of Claim setting out in full the facts and circumstances of her claim against the present Respondent together with particulars of how the amount of $1,063,454.47 is constituted by 11 October 2019”, and that by 18 October 2019 she was to file “a draft Statement of Claim setting out in full the matters, facts and circumstances constituting her claim against the two putative Respondents, being the New South Wales Ministry of Health and Far West Local Health District”.
The matter came back before me on 13 December 2019 when it was clear to me that the document filed by the Applicant on 18 October 2019 headed Draft Statement of Claim was not a proper pleading. I informed the Applicant that the document was not a proper pleading and did not comply with the orders of 27 September 2019, but indicated to her that I would give her another chance to put on a proper pleading, and on 13 December 2019 she was given up to 31 January 2020 to do so, with the matter being listed before me on 14 February 2020 at 9:30am.
The Applicant then on 31 January 2020 lodged a document entitled Statement of Claim, which was accepted by the Registry as having been filed on 3 February 2020.
In the period leading up to the directions hearing of 14 February 2020 my Chambers received six emails from the Applicant.
The first email of 4 February 2020 indicated that the Applicant wanted this proceeding transferred to the Federal Court of Australia.
The second dated 10 February 2020 made submissions, advised that the Applicant’s preference was to settle the matter with deeds of settlement exchanged prior to 14 February 2020 and seeking that the directions hearing of 14 February 2020 be vacated.
There was then a third email on Wednesday 12 February 2020 at 8:03am seeking that the hearing of 14 February 2020 be vacated and again seeking deeds of settlement.
The Applicant then sent a fourth email on 12 February 2020 at 11:03am to my Chambers which attached the Respondent’s solicitor’s letter to her dated 12 February 2020 addressing and outlining their criticism of her Statement of Claim filed on 3 February 2020, the problems perceived with it and also her foreshadowed application to transfer to the Federal Court.
In response to the Applicant’s fourth email my Chambers sent an email on 12 February 2020 at 4:08pm to the Applicant and copied to the other interested parties, which stated:
Dear Ms Wilkinson,
First, you have sent four emails to these Chambers since 4 February 2020. In his Honour’s view this is inappropriate because Court proceedings are basically dealt with in open Court and not conducted by emails either to the Judge or to the other parties.
Second, nothing in the email correspondence inclines his Honour to vacate the directions hearing scheduled for this Friday 14 February at 9:30am, when all parties should appear either in person or by their lawyers. On that occasion you and the other parties will be at liberty to ventilate any issues which are appropriate to be ventilated at a directions hearing in a busy list.
Regards,
Associate to Judge Dowdy
That email was followed by a fifth email from the Applicant received on 12 February 2020 at 5:40pm seeking to vacate the hearing of 14 February 2020, and then a sixth email of 13 February 2020 at 8:38am which stated as follows:
As discussed I will not be present for the Direction's Hearing as an applicant in person due to costs in attendance and a constitutional right to due process for transfer of proceedings by adjournment Pre-Hearing for application of the Criminal Code Act 1995.
I do not want to waste the Federal Circuit Courts time and will be saving costs for the State and respondents.
In response to the Applicant’s sixth email my Chambers sent an email on 13 February 2020 at 3:18pm to all of the parties, which stated:
Dear Parties,
Please see below the further email of the Applicant dated 13 February 2020 which she did not, as she ought to have done, copy to all of the other parties.
His Honour set out his position yesterday in my email of 4:08pm and the matter remains in the list for tomorrow morning.
Regards,
Associate to Judge Dowdy
In my view, there is no proper excuse or reason for the Applicant not to be present in Court today to propound her case. She started the case in Melbourne, which I assume is only about the same distance, maybe a little less, from where she lives in Broken Hill, and Registrar Ryan of the Court in Melbourne determined that it was proper that it be transferred to Sydney.
The Applicant needs to come to Court to propound her case. The case does not proceed by emails, as I have explained to her in relation to the stream of emails sent to my Chambers this week.
The Applicant evinced an intention not to appear in unequivocal terms by her email of Wednesday 12 February 2020.
Subsequent to that, when I had made it clear by emails sent to the parties from my Associate dated 12 February 2020 and 13 February 2020 that the matter would proceed on 14 February 2020 at 9:30am despite her informing me that she would not be in attendance, she has produced a medical certificate. It is unnecessary for me to opine whether that medical certificate is a true reflection of her inability to be here, having regard to the earlier unequivocal statement that she was not going to attend the directions hearing of today in any event. It is sufficient to say that it is wholly inadequate to justify her non-attendance today because all it says is:
I certify that I have examined / attended to Ms Leah M Wilkinson and believe she should do any air travel for a medical condition for 13/02/2020 for 18/02/2020. Please do not hesitate to contact me if you need any further information.
It suffices to ground an order for costs under s.570(2)(b) of the FW Act that the Applicant has unreasonably failed and omitted to be present in Court today, which means that today’s case is a complete waste of time and that waste of time has been caused by the absence of the Applicant.
I note that at the hearing today Mr Veloso appears for the Respondent and Ms C. Wilkinson of Counsel appears for the Putative Respondents. Mr Veloso reads and relies upon the affidavit of Mr Aaron Jon Goonrey sworn 13 February 2020, which sets out relevant correspondence.
Both Mr Veloso and Ms Wilkinson apply for the proceeding to be dismissed for absence of the Applicant’s attendance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). They also seek orders for costs thrown away. Whilst having a considerable degree of sympathy for the application for dismissal, I take the view that the Applicant should be given a further opportunity to reconsider her position and to personally appear in Court. Accordingly, I will stand the matter over to my following Friday directions list and make an order for the costs thrown away for today as sought by the Respondent and Putative Respondents.
Postscript
My Chambers sent the following email at 11:13am to the Applicant, copied to all interested parties, after my directions hearings list had concluded:
Dear Ms Applicant,
As earlier indicated your matter remained in the Court list for this morning, when again Mr Veloso appeared for the Respondent and Ms Wilkinson of Counsel appeared for the Putative Respondents.
As you did not appear the matter could not proceed and costs were wasted.
In these circumstances his Honour made orders that you pay costs of $1,000, assessed on a lump sum basis, to each of the Respondent and the Putative Respondents, totalling $2,000.
In circumstances where you did not appear Mr Veloso and Ms Wilkinson also asked that the proceeding be dismissed for absence of your appearance; however his Honour was of the view that you should be given one further opportunity to appear in Court and propound your case.
Accordingly the matter has been adjourned to next Friday, 21 February 2020, at 9:30am. If you again do not appear then Mr Veloso and Ms Wilkinson will renew their applications for the dismissal of the proceeding. His Honour understands the difficulty of conducting litigation from Broken Hill, but the simple fact of the matter is, as I have pointed out earlier this week, that Court proceedings basically take place in open Court and it is your obligation to appear on scheduled occasions.
Regards,
Associate to Judge Dowdy
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 February 2020
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