Wilkinson v Healthscope Operations Pty Ltd (No.2)
[2020] FCCA 516
•21 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILKINSON v HEALTHSCOPE OPERATIONS PTY LTD (No.2) | [2020] FCCA 516 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – no appearance by the applicant at further second scheduled directions hearing –dismissal order and costs orders sought again by the respondent and putative respondents – applicant must be present to propound her case in this Court – application dismissed under Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for absence of appearance of applicant – costs orders made under s.570 of the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work Act 2009 (Cth), s.570 Federal Circuit Court of Australia Act 1999 (Cth), s.37 Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | LEAH MAREE WILKINSON |
| Respondent: | HEALTHSCOPE OPERATIONS PTY LTD |
| Second Putative Respondent: | NEW SOUTH WALES MINISTRY OF HEALTH |
| Third Putative Respondent: | FAR WEST LOCAL HEALTH DISTRICT |
| File Number: | MLG 2459 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 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 Application filed in this Court on 30 July 2019 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant is to pay any costs previously reserved.
The Applicant is to pay the costs of the Respondent as agreed or assessed.
The Applicant is to pay the costs of:
(a)the New South Wales Ministry of Health; and
(b)the Far West Local Health District;
as agreed or assessed.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 24 March 2020 to file any Application for leave to appeal from the orders above in the Federal Court of Australia.
| 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
Second Putative Respondent
FAR WEST LOCAL HEALTH DISTRICT
Third Putative Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
This matter was listed before me on 13 December 2019 when all relevant parties were represented and present in Court, including the Applicant who appeared personally, and the matter was adjourned to 14 February 2020. The Applicant did not appear in the circumstances summarised in my judgment of 14 February 2020, bearing medium neutral citation [2020] FCCA 343, to which I refer and which should be read as the background to, informing, and part of my judgment here now delivered.
Further, attached to this judgment and marked Annexure A is a Chronology of Events which was forwarded to my Chambers by the solicitor for the parties which have been called the Second and Third Putative Respondents. I have checked the accuracy of this document and, after a small tweaking to paragraph 8 which I have just made, I accept it as correct. Both Mr Veloso, who appears again today for the Respondent, and Ms Wilkinson, who also appears again for the Second and Third Putative Respondents, inform me that they both agree that it is correct.
This morning Mr Veloso and Ms Wilkinson renew the application that they had made on 14 February 2020 for the proceeding to be dismissed for absence of the appearance of the Applicant pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), together with costs.
On that occasion, notwithstanding feeling a degree of sympathy for their application for dismissal, I decided to give the Applicant a further opportunity to show that she would appear in this proceeding and I adjourned the matter to today. But she does not appear and she has informed my Chambers via email correspondence during the week that she does not intend to appear. The correspondence evinces the attitude of the Applicant and is annexed to the affidavit of Mr Veloso sworn on 20 February 2020, which was read and relied upon today and which supplements the earlier affidavit read on the last occasion which was re-read today of Mr Aaron Goonrey sworn on 27 August 2019.
I note that during the week the Applicant sent to my Chambers a further medical certificate, which relevantly provided verbatim as follows:
MEDICAL CERTIFICATE
Date of Issue: 20 February 2020
TO WHOM IT MAY CONCERN
I certify that I have examined/attended to Ms Leah M Wilkinson
and believe she is suffering with Eustachian tube dysfunction and advcie not to travel for next couple of days.(20/2/2020-22/2/2020). If patient feels better can travel after 22/02/2020.
I noticed she met my colleague for the same problem. The letetr says she was adviced not to travel from 13/02/2020 to 18/02/2020. There is samll typing error on the letter which i amended and signed.
Kind regards,
Dr Radha Palakolanu
Provider No: 5026955B
20 February 2020
That medical certificate is quite insufficient to establish to my satisfaction that the Applicant is unable to be present in Court today and to meaningfully participate. I infer from the correspondence that she has sent that the Applicant has made a decision not to be present, both on the last occasion and today, irrespective of any health issues.
The Applicant seems to be under the impression, from which I have sought to disabuse her, that she can conduct this proceeding from Broken Hill via email correspondence. That, of course, is not the case.
On 10 February 2020, the Applicant had served an affidavit seeking:
1. The applicant requests matter MLG2459/2019 filed in the Federal Circuit Court be transferred to the Sydney Registry of the Federal Court of Australia pursuant to r8.02 of the Federal Circuit Court Rules 2001 due to complexity and for the purposes of the application of the Criminal Code Act 1995 in relation to an offence under Part 6 section 104 subsection (1) Work Health and Safety Act 2011 (Cth) Part 6 section 104 subsection (3).
I intended to hear today the transfer application to the Federal Court which the Applicant had indicated she wanted to make, and which would be made under s.39 of the Federal Circuit Court of Australia Act 1999 (Cth). She, of course, is not present to make that application today. I note that there is no evidence before the Court that the Applicant cannot afford to travel from Broken Hill to Sydney as she has asserted in her correspondence over the last week or so.
She has attended the Court before me in Sydney on 27 September 2019 and 13 December 2019, and she attended the Melbourne Registry of the Court on one occasion, she having initially commenced the case in Melbourne. As I have said, no medical evidence has been tendered by the Applicant which would justify or excuse her failure to appear on 14 February or today.
The Applicant is a litigant in person and suffers from the fact that, by reason of that, she is in an unfamiliar setting in conducting Court proceedings. Further, I accept that she lives a long way from Sydney, as indeed she was living a long way from Melbourne at the time she commenced the proceeding. But the simple fact of the matter is that she is the Applicant in the proceeding; it is her duty to properly propound it and legal cases are conducted primarily in Court.
Obviously, from time to time, a Judge will consider and act upon email correspondence when a discrete matter can be dealt with efficiently in such a way. During this week I received further quite lengthy affidavits from the Applicant by email, but I instructed my Associate not to show those affidavits to me because of my view that this matter had to be conducted in any further respects by appearances in Court, and following the circumstances of 14 February 2020 I was not prepared to allow the Applicant to appear by telephone today, but insisted that she appear in person.
The Respondent and the Putative Respondents also seek costs. The Courts are, in some cases, a little reluctant to order costs against litigants in person, but such is not the case here. In my view, in this case, the fact that the Applicant is a litigant in person and the fact that she lives in Broken Hill ought not protect her from an order for costs in a situation where on two occasions she has failed, in my view deliberately, to come to Court. This is particularly the case in a situation where she herself wanted to make an application to have this matter transferred to the Federal Court, and that matter would have been dealt with today. In relation to costs against litigants in person I am guided by the approach of Buchanan J in Ross Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 and the judgment of Wigney J in Truong Giang Corporation v Quach [2016] FCA 50.
In the circumstances, I consider that the Court ought act to bring this proceeding to an end. There is no justification for the Respondent to be put to the risk of further costs and forced to be involved in a case where the Applicant seems to take the view that she can turn up or not turn up at her whim and pleasure.
There is no reason why the public bodies comprising the Second and Third Putative Respondents, for whose financial position presumably the taxpayers of New South Wales are ultimately responsible, should suffer further costs when they have been brought unwillingly before the Court by the Applicant’s wish to join them to the proceeding, but she herself does not turn up to Court to propound that application either.
Of course, in Fair Work matters of this type s.570 of the Fair Work Act 2009 (Cth) (FW Act) limits the power of the Court to make orders for costs.
However, I remain of the view that I held on 14 February 2020, being that the Applicant has unreasonably omitted and failed to make herself present in Court, now on two occasions, and that this unreasonable omission and failure to be present has caused the Respondent and Putative Respondents to incur costs quite unnecessarily and it is appropriate to make an order under s.570 of the FW Act.
Accordingly, the Application filed in this Court on 30 July 2019 is to be dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 10 March 2020
Annexure A
No. MLG2459 of 2019
Federal Circuit Court of Australia
District Registry: New South Wales
Division: Fair Work
LEAH MAREE WILKINSON
Applicant
HEALTHSCOPE OPERATIONS PTY LTD
First Respondent
NEW SOUTH WALES MINISTRY OF HEALTH
Second Putative Respondent
FAR WEST LOCAL HEALTH DISTRICT
Third Putative Respondent
Chronology of Events on behalf of the Second and Third Putative Respondents
On 19 September 2019, the Applicant filed, an Application in a Case with the Federal Circuit Court of Australia (the FCC) to join the Putative Respondents to the proceedings.
On 27 September 2019, a directions hearing was listed before his Honour Judge Dowdy in the FCC. The Applicant, Respondent and Putative Respondents attended.
On 30 September 2019, his Honour Judge Dowdy made orders with respect to the timetabling for the filing and service of materials for the parties, to progress the matter.
On 11 October 2019, the Applicant served an affidavit outlining her case against the Respondent.
On 18 October 2019, the Applicant served submissions and a draft Statement of Claim outlining her case against the Putative Respondents.
On 8 November the Putative Respondents, filed and served:
(a)an affidavit of N Inglis affirmed 4 November 2019;
(b) an affidavit of D Bell affirmed 7 November 2019; and
(c) an outline of submissions dated 8 November 2019.
On 13 December 2019, the Applicant, Respondent and Putative Respondents attended a directions hearing before his Honour Judge Dowdy in the FCC. The Applicant attended the directions hearing in person, in circumstances where his Honour Judge Dowdy had given permission for her to appear via telephone on 11 December 2019.
On 13 December 2019, Judge Dowdy:
(a) made orders extending the Applicant’s time to comply with his orders of 30 September 2019, to 31 January 2020;
(b) listed the matter for further directions on 14 February 2020; and
(c) ordered the costs of the Respondent and Putative Respondents be reserved.
On 4 February 2020, the Applicant purported to file with the Federal Court of Australia and serve an affidavit to request to transfer the matter to the Federal Court of Australia. On 10 February 2020, the Applicant sent an email to the Associate to Judge Dowdy, the Respondent and Putative Respondents attaching a sealed copy of the affidavit she purported to file on 4 February 2020.
On 12 February 2020, the Applicant sent:
(a) an email to the Associate to Judge Dowdy, the Respondent and Putative Respondents and attaching her affidavit dated 4 February 2020 requesting the directions hearing of 14 February 2020 be vacated; and
(b) an email to the Respondent and Putative Respondents stating she will not be attending the hearing on 14 February 2020.
On 13 February 2020:
(a) the Applicant sent:
(i) an email to the Associate to Judge Dowdy, the Respondent and Putative Respondents requesting a transfer to the Federal Court of Australia and for settlement offers to be made;
(ii) an email to the Respondent and Putative Respondents requesting a settlement be made;
(iii) an email to the Respondent and Putative Respondents attaching a payslip and requesting a settlement offer be made; and
(iv) an email to the Associate to Judge Dowdy, the Respondent and Putative Respondents attaching a medical certificate advising she will not be attending court on 14 February 2020.
(b) Aaron Goonrey, representative for the Respondent, filed his affidavit sworn 13 February 2020 in the FCC; and
(c) Sparke Helmore, representatives for the Putative Respondents, wrote to the Applicant reiterating the Putative Respondents continued opposition to her application to join the Putative Respondents and setting out defects in her request to transfer the application to the Federal Court of Australia.
On 14 February 2020:
(a) the Respondent and Putative Respondents attended the directions hearing. The Applicant did not attend.
(b) At the directions hearing, his Honour Judge Dowdy:
(i) Stood the matter over to 21 February 2020 at 9:30 am in Sydney;
(ii) listed the matter for further directions on 21 February 2020;
(iii) made orders that the Applicant pay the costs thrown away for the day of the Respondent in the sum of $1,000 and the Putative Respondents in the sum of $1,000; and
(iv) made orders for the Respondent and Putative Respondents to notify the Applicant of the terms of these orders.
(c) the Applicant emailed the Respondent and Putative Respondents a payslip purportedly in support of a claim for loss of wages.
On 14 February 2020, the representatives for the Respondent and the Putative Respondents emailed the Applicant a copy of the above orders.
On 18 February 2020, the Applicant emailed the Associate to Judge Dowdy, the Respondent and Putative Respondents:
(a)an application for leave to appeal dated 16 February 2020;
(b) Form 121 Rule 36.01(1)(a) dated 15 February 2020; and
(c) electronic lodgement forms.
On 19 February 2020, the Federal Court Registry confirmed that the application for leave to appeal and related forms were not formally filed.
On 20 February 2020, the Applicant sent:
(a) an email to Associate to Judge Dowdy, the Respondent and Putative Respondents attaching a medical report for non-attendance at the directions hearing on 14 February 2020 and 21 February 2020; and
(b) an email to the parties and His Honour’s Associate stating that, amongst other things, she has sent a complaint to the Attorney Generals Department and advising that all parties should reconsider their attendance at the hearing on 21 February 2020.
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