Yu v ACT Education Directorate

[2019] FCCA 2643

FEDERAL CIRCUIT COURT OF AUSTRALIA

YU v ACT EDUCATION DIRECTORATE [2019] FCCA 2643

Catchwords:
INDUSTRIAL LAW – Whether the Applicant has the capacity to prosecute her Application in circumstances where she suffers significant mental health issues – considerations from the High Court in AON Risk Services Australia Limited v Australian National University including impact on the Respondent’s waiting witnesses and the resources of the Court – Application dismissed with no Order as to costs.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), ss.14 & 42

Federal Circuit Court Rules 2001, r.1.03

Cases cited:

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Yu v ACT Education Directorate [2018] FCCA 2835

Yu v ACT Education Directorate [2019] FCA 272

Applicant: JING YU

Respondent: ACT EDUCATION DIRECTORATE

File Number: CAG 86 of 2016

Judgment of: Judge Neville

Hearing date: 12 March 2019

Date of Last Submission: 17 July 2019

Delivered at: Canberra

Delivered on: 20 September 2019

REPRESENTATION

Solicitors for the Applicant: Self-represented

Counsel for the Respondent: Ms P Bindon

Solicitors for the Respondent: ACT Government Solicitor

ORDERS

1. All extant Applications be dismissed.

2. Absent any opposing Application being filed within 14 days of the date of these Orders, being by 4th October 2019, there be no order as to costs.

3. Conditional upon her also filing a psychiatric report by a psychiatrist who has had access to the Applicant’s hospital records from 1st March 2019 onwards, the Applicant is granted liberty to re-apply within 6 months of the date of these Orders, being by 20th March 2020, for the matter to be relisted.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 86 of 2016

JING YU

Applicant

And

ACT EDUCATION DIRECTORATE

Respondent

REASONS FOR JUDGMENT

Introduction

1. Pursuant to an Amended Application filed on 3^rd April 2017, the Applicant seeks relief under the Fair Work Act 2009 (“the FW Act”). Among other things, the Applicant, who is a high school teacher, claimed that the Respondent, her employer, had taken adverse action against her, which has led to the cessation of her employment.

2. This matter was originally heard in March 2018.  The trial was not completed and was adjourned as part-heard.

3. The immediate issue to determine is whether the Applicant is sufficiently healthy to continue to prosecute her Application, particularly given her recent diagnosis (among other things) of Persistent Depressive Disorder.

4. For the reasons that follow, in the light of (a) the evidence (such as it is) and (b) the Applicant’s apparent inability to follow the Court’s directions over a period of time, in my view it is not proper for the Court to permit the Application to proceed at this time.  It is a matter for the Applicant whether or not, at some later time, she ultimately pursues her claims against the Respondent, subject to whether and if so when her health (particularly her mental health) returns to a sufficient state of robustness.

Recent procedural history

1. After the original hearing did not conclude in March last year, the Applicant filed an Application in a Case, on 25^th May 2018, seeking that I recuse myself.  Written submissions in that recusal Application were provided by the parties in July and October 2018.  Judgment was delivered and Orders made on 1^st November 2018, which dismissed that Application.[1]  The Orders made on that date also provided for a future hearing of the matter, commencing on 12^th March 2019.

   [1] Yu v ACT Education Directorate [2018] FCCA 2835.

2. The Applicant unsuccessfully appealed the recusal decision to the Federal Court of Australia.[2]  Before the Federal Court, Ms Yu also raised concerns about her state of health.  As recorded by Robertson J, at [8] – [9] of his judgment, his Honour stated:

   [8] The affidavit in support, referred to in the application, is dated 28 November 2018 and in relation to the application for an extension of time states:

   9. I could not file the Application for leave to appeal within 14 days because of illness: I have been suffering from anxiety, depression, and insomnia since 2016. In addition, I caught the flu at the end of last month which lasted a couple of weeks and then it was followed by severe coughing which I haven’t recovered from.

   10. On 1 November 2018, I was too ill to attend the Judgement delivery and I informed Court accordingly.

   [2] Yu v ACT Education Directorate [2019] FCA 272.

   [9] No other medical evidence has been filed by the applicant.

3. Then at [21], Robertson J said:

   2.   In my opinion, the applicant has not provided a reasonable explanation for the delay in commencing this application. There is no evidence, beyond her own, and no persuasive evidence, as to her medical condition or conditions or how the claimed medical condition or conditions caused the delay.

4. At times during the substantive hearing, as well as during the appeal before Robertson J as just observed, significant issues arose regarding the Applicant’s well-being and general capacity to continue with the proceedings, particularly as a self-represented litigant.  The Court is generally aware that an ambulance was called to the Court for the Applicant following the hearing of the appeal before Robertson J and that Ms Yu was taken to hospital.  As noted below, this is confirmed by the Applicant in later submissions.

5. At a pre-hearing directions on 7^th March 2019, the Applicant did not appear in person but was telephoned by an Associate, in open Court.  The Applicant advised that she was too unwell to appear on this occasion and hung up.  Necessarily, the matter proceeded in her absence. 

6. In consequence, the Court made further procedural Orders requiring the Applicant to advise the Court and the Respondent by 4pm on 8^th March 2019 whether she would be in a position to proceed with the scheduled resumed hearing of the matter on 11^th and 12^th March 2019.  The Court noted in these Orders of 7^th March 2019 that if the Applicant failed to advise the Court that she is able to proceed with the hearing, the matter would remain listed but only for directions on 12^th March 2019.

7. On 8^th March 2019, Ms Yu sent an email to the Court in the following terms:

   3.   … I am not in a position to proceed with next week’s hearing due to health issues.  I have attached the medical certificate.

8. There were two medical certificates attached to this email. The first certificate, dated 5^th March 2019 from Dr Abul Hassan Syed, was as follows:

   This is to certify that I have examined Mrs Jing Yu. She is receiving medical treatment and will be unfit to continue her usual occupation from 05/03/2019 to 08/03/2019 inclusive

9. The second certificate, dated 8^th March 2019, from the same general practitioner, was as follows:

   This is to certify that I have examined Mrs Jing Yu. She is receiving medical treatment and will be unfit to continue her usual occupation/ court hearing due to stress and anxiety-depression from 08/03/2019 to 22/03/2019 inclusive.

10. Approximately one hour prior to the Court event on 12^th March 2019, the Court received an email from the Applicant, in the following terms:

    1. I am sorry that I am unable to come to Court today, 12 March 2019, for the Directions hearing.

    4.   Also I could not talk to the Judge on 7 March 2019 after being contacted by phone because I was so upset that I was continually crying and not able to stop.  The Judge terminated the call.

    5.   Subsequently I received an email requesting me to attend Court on 12 March 2019 which, as stated above, I am not in a physical or mental state to participate.  I have had a complete breakdown.  On 1 March 2019 I was taken by ambulance from the Court to Calvary Hospital where I waited for further treatment but it was not forthcoming.  In the end after my panic attack had subsided I just wanted to get home and recover.

    6.   This is due to my severe depression, anxiety and stress.  I am unable to deal with any matters relating to these proceedings and cannot make any decisions on medical advice I have received.  A medical certificate has already been provided.

    7.   On 9 March 2019 my treating Psychologist advised me that I should not think about or deal with any court matters for at least 6 months.

11. On 12^th March 2019, with no appearance by the Applicant, the Court made Orders outlining the Court’s concerns about “balancing the competing interests of the Applicant continuing to prosecute her Application … and the limited resources and capacity of the Court.”  The Court adjourned the matter until 20^th June 2019 for further directions, and ordered the Applicant to provide a “short psychiatric report detailing her condition and capacity to prosecute her Application.”  The Notations and Orders of 12^th March 2019, in full, were as follows:

    THE COURT NOTES THAT:

    A. The Applicant advised Chambers via email on 8 March 2019 that she was unable to appear for directions on 12 March 2019 due to health issues and provided medical certificates to that effect;

    B. The Applicant provided a submission via email to Chambers on 12 March 2019, confirming that she is too unwell to participate in proceedings, and sought the matter be adjourned for a period of 6 months;

    C. In Court, the Respondent noted that the only medical evidence provided by the Applicant was two medical certificates covering the period 5 March 2019 to 22 March 2019;

    D. The Court holds concerns about balancing the competing interests of the Applicant continuing to prosecute her Application, noting that it remains part-heard, and the limited resources and capacity of the Court; accordingly,

    UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

    1. The matter be adjourned for further directions on 20 June 2019 at 9:15am in CANBERRA.

    2. No less than 7 days before the next directions hearing, being by 13 June 2019, the Applicant is to provide a short psychiatric report detailing her condition and capacity to prosecute her Application.

    By the Court

    DATE ENTERED: 12 March 2019

12. On 12^th June 2019, the Applicant provided the Court with a short letter from a psychologist (set out later in these reasons).  At a Directions Listing on 20^th June 2019, with the Applicant in attendance, further Orders were made directing Ms Yu to file and serve brief written submissions in the light of what she had previously filed – namely a short letter from a psychologist (as opposed to the Court’s direction to provide a short report from a psychiatrist).  Those submissions were filed on 4^th July 2019.  The Respondent filed submissions on 17^th July 2019.  All submissions are set out below.

The Applicant’s Evidence & Submissions

1. On 12^th June 2019, the Applicant provided the following letter (dated 2^nd June 2019) from a Registered Psychologist, Ms Merilyn Lewis:

   Ms Jing Yu first came to see me on 09/03/2019 with symptoms of Depressed Mood and Anxiety that she has experience since mid June 2016 when she was stood down from work.

   Ms Yu meets the criteria for Persistent Depressive Disorder (Dysthymia) in DSM-V 300.4 (F34.1), with persistent severe major depressive episode and severe anxious distress.

   Under normal circumstances, Ms Yu’s cognition and insight are normal and she is quite capable of making important decisions about her welfare. When not well, she may need extra time and support to complete tasks that need her attention.

2. On 4^th July 2019, the Applicant filed her written submissions, which were as follows:

   1. The Applicant provides these submissions pursuant to Order 1 of the Orders made by Judge Neville dated 20 June 2019. The submissions outline the proposed procedural course for the matter in light of the psychologist's letter ( and whether it complies with or satisfies Order 2 of the Orders dated 12 March 2019).

   8.   On 12 June 2019 the Applicant provided the Court with her treating psychologist's letter, in which it states the Applicant's mental conditions and her capacity to prosecute her application. The Applicant considers that the letter complies with or satisfies the Court requirements. The Applicant also sought the opinions of two lawyers who confirmed that in their opinion the letter satisfies the Order.

   9.   The Applicant understands that at common law, there is a presumption that everybody of full age has the mental capacity to manage their own affairs, including the commencement and defence of legal proceedings. That a party to legal proceedings has that capacity is the working assumption of the courts until the contrary is proven. The burden of proving to the contrary rests with those asse1ting incapacity (Goddard Elliot v Fritsch [2012] VSC 87, [546]).

   10.    In relation to the Applicant's capacity to prosecute her application, the Applicant intends to engage a Legal Practitioner to assist with her Fair Work claim. This will assist the process and help avoid any misunderstandings on technical matters.

   11.    The matter should continue to be heard because the fundamentals of the Applicant's case remain the same. The Applicant pursued this matter in the first place because of unlawful treatment in the workplace. This treatment has the damaging effect on the Applicant.

   A concern noted by the Applicant

   12.    The Applicant noted that His Honour Judge Neville and Ms Bindon, the counsel for the Respondent, worked together outside of the Courtroom, e.g. a couple of days after the March 2018 hearing, they jointly made a presentation for the seminar organised by the ACT Law Society. The Applicant is concerned that there may perceive to be a conflict of interest.

The Respondent’s Evidence & Submissions

1. The Respondent’s written submissions, filed 17^th July 2019, were as follows:

   1.   Pursuant to r 9.61 of the Federal Court Rules 2011 (Rules) (applicable to the Court via s 43 of the Federal Circuit Court of Australia Act 1999 (Act)) a person under a legal incapacity may only pursue a proceeding by a litigation representative appointed by the Court. ‘Legal incapacity’ is defined in the Rules to include ‘a mentally disabled person’ which is defined as a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding.

   2.   As noted in Murphy v Doman (2003) 58 NSWLR 51 (Murphy) at [33], there is ‘no universal test for determining whether a person is capable of managing his own affairs’ and it depends on the particular issue in question. Relevantly, the NSW Court of Appeal said at [35]:

   The cases do not consider the level of mental capacity required to be a “competent” litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.

   (The Applicant asserts in her submissions that she ‘intends’ to ‘engage a legal practitioner to assist’ with her claim. However, it does not appear that such a person has yet been engaged and no undertaking has been proffered by the Applicant that one will be.

   3.   Comments to a similar effect were made by Debelle J in Dalle-Molle v Manos (2004) 88 SASR 193 at [26] following a review of the common law in this area:

   The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes.

   4.   The diagnosis in the letter from the Applicant’s psychologist indicates the existence of a mental illness, however it fails to address the essential issue of the Applicant’s capability to manage her own affairs in the proceeding. In particular, the substantive part of the letter states:

   Under normal circumstances, Ms Yu's cognition and insight are normal and she is quite capable of making important decisions about her welfare. When not well, she may need extra time and support to complete tasks that need her attention’ (emphasis added)

   but provides no detail or explanation as to: (i) what constitutes ‘normal circumstances’ and, importantly, whether this would include prosecuting proceedings in the Court; (ii) whether or not the Applicant is currently ‘well’ or, importantly, the likelihood of the stress of prosecuting the proceedings in Court resulting in her becoming ‘not well’; or (iii) how much ‘extra time’ and what ‘support’ the Applicant would require when she is not well.

   5.   In the circumstances, the letter does not provide the Court with confirmation that the Applicant has the requisite capability, in light of her informing the Court on 12 March 2019 that she was too unwell to participate in proceedings and required a 6 month adjournment. There is therefore a risk that if the proceedings are pursued without further clarification on this issue, they may be conducted in breach of the Rules. As to the potential consequences of this, see eg, Murphy at [38]-[52].

   6.   Accordingly, the Respondent reserves its rights to make an application for appointment of a litigation representative if: (i) the Applicant herself does not make such an application; or (ii) the Applicant does not furnish to the Court a medical report confirming that her mental illness does not render her incapable of managing her own affairs in a proceeding, and she insists on a procedural course that involves a further full hearing.

   7.   The Respondent notes that the Applicant proposes simply that the matter ‘should be heard’. The Respondent proposes a further directions hearing is necessary to timetable any application for appointment of a litigation representative and to allow the parties to address alternatives to a further full hearing. In that respect there are flexible powers available to the Court under ss 42, 54, 55, 56, 60, 62, 64 of the Act and regard should had given]sic]  to the case management considerations in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 given the duration of this matter. The Respondent notes that the Applicant has had the benefit of having concluded her case in chief more than one year ago but the Respondent does not enjoy the same position.

Consideration & disposition

1. Section 14 of the Federal Circuit Court of Australia Act 1999 provides as follows (emphasis added):

   In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:

   (a)  absolutely; or

   (b)  on such terms and conditions as the Federal Circuit Court of Australia thinks just;

   all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:

   (c)  all matters in controversy between the parties may be completely and finally determined; and

   (d)  all multiplicity of proceedings concerning any of those matters may be avoided.

2. Section 42 of the same Act provides (emphasis added):[3]

   In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.

   [3] See also Rule 1.03 of the Federal Circuit Court Rules 2001, which sets out the “Objects” of the Rules, including the “just, efficient and economical resolution of proceedings.”

3. There are a number of comments by the High Court in AON Risk Services Australia Limited v Australian National University (“AON”) that are relevant to the Court’s consideration and determination of whether it should permit the long-running litigation between the parties to resume/continue.[4]  The comments by the High Court in AON are relevant, in particular, to considerations regarding the efficient allocation and use of scarce public resources, and the impact of delay on other proceedings before the Court. 

   [4] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

1. In the separate judgment of French CJ, his Honour said, at [5] (emphasis added):

   In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource.  Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.  So too is the need to maintain public confidence in the judicial system….

2. At [23], his Honour said:

   … the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

3. Finally (for current purposes), at [26], French CJ said, by reference to earlier High Court authority (internal citations omitted; emphasis added):

   … in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties" …

4. The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ made similar comments to those of the Chief Justice.  For current purposes it is sufficient to note the following.

5. First, at [93], their Honours referred to the achievement of a timely and cost-effective resolution of a dispute as also having “an effect upon the court and upon other litigants.”

6. Secondly, by reference to authority from the English Court of Appeal, at [94], the High Court said (emphasis added; internal citations omitted):

   In Gale v Superdrug Stores Plc Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants.  Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.

7. At [100], again by reference to UK authority, the joint judgment stated (internal citations omitted; emphasis added):

   … justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants …

8. At [101], the High Court acknowledged that “personal litigants are likely to feel the strain more than business corporations or commercial persons.”  In saying this, in the same place the Court acknowledged that corporations (and presumably all other litigants as well) were also susceptible to the pressures associated with litigation.  Indeed, the High Court noted, still at [101] that (emphasis added):

   … whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end… The stated object in the Court procedure Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.

9. Finally, at [113], the High Court stated (internal citation omitted; emphasis added):

   The allocation of power, between litigants and the courts arises from tradition and from principle and policy.  It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

10. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, the High Court commented further on the importance of the Court having a more “directorial” role in the conduct of matters before it.[5]  At [56] and [57], by reference to the objects of the Civil Procedure Act 2005 (NSW), the High Court said (emphasis added):

    [56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose.  Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court.  It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

    [57] That purpose may require a more robust and proactive approach on the part of the courts.  Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance.  Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2).  The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.  The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

    [5] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.

11. In the light of the principles referred to, the evidence provided, and the submissions of the parties, I note the following.

12. First, on 12^th March 2019, the Court directed the Applicant to provide a short psychiatric Report that set out her capacities to prosecute her Application.  This has never been done.  The very short medical certificates from a general practitioner do not comment at all, let alone particularise in the light of expert medical assessment, her ability to continue with this litigation.  Likewise, the letter from a psychologist dated 2^nd June 2019 does not relevantly address the issues raised by the Court, other than in a very general and very conditional manner.

13. Secondly, on her own report, Ms Yu has suffered a very significant mental health issue.  In her submission, filed 12^th March 2019, the Applicant stated that she had “a complete breakdown.”  She further confirmed that this breakdown was due to her “severe depression, anxiety and stress.”  She continued:

    I am unable to deal with any matters relating to these proceedings and cannot make any decisions on medical advice I have received…

14. Thirdly, in the absence of a detailed independent psychiatric assessment, as directed by the Court in March 2018, I cannot be confident that the Applicant has the wherewithal to continue with the proceeding.  In my view, in the absence of such detailed assessment, the Court cannot be satisfied that there will not be a significant risk of the Applicant again suffering “a complete breakdown” when faced with the extreme stresses of litigation.

15. Fourthly, in the light of the comments of the High Court in AON, the Court must be conscious not only of the likely adverse impact of the ongoing litigation on the Applicant (again, I stress, in the absence of any proper and detailed psychiatric evidence), but equally so on the Respondent’s waiting witnesses, as well as on other litigants who are awaiting the allocation by the Court of its scarce resources, including hearing dates.

16. In short, in my view, the Applicant has not relevantly demonstrated her capacity to prosecute her Application, nor has she complied with the Court’s direction to provide psychiatric evidence that would enable the Court to be satisfied that she has the relevant capacity to prosecute her Application.

17. For these reasons, the Amended Application, filed on 3^rd April 2017, must be dismissed. Given that it was brought under the FW Act, absent any Application within 14 days, each party should pay their own costs.

18. Should it be necessary, I grant leave to the Applicant to apply within the next 6 months for the Application to be re-listed.  This may only occur upon the Applicant filing a psychiatric Report, which has been prepared in the light of that specialist having had access to Ms Yu’s hospital records following her admission on 1^st March 2019.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date: 20 September 2019