FEDERAL COURT OF AUSTRALIA

Leung v Bentley Hospital [2003] FCA 298

KAREN LEUNG v BENTLEY HOSPITAL & ORS

W315 of 2002

CARR J

28 MARCH 2003

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

introduction

1                     The Court is considering, of its own motion, whether this application should be stayed or dismissed generally under Order 20 rule 2 of the Federal Court Rules on the ground or grounds that no reasonable cause of action is disclosed or that the application is frivolous or vexatious, or is an abuse of the process of the Court.

factual and procedural background

2                     The applicant was employed as a Clinical Manager at the Bentley Hospital from 1989 to July 1996 when, on her case, she was constructively dismissed.  On 28 May 1996, she applied to the Australian Industrial Relations Commission for relief in respect of that termination of employment.  The Commission provided a certificate under s 170ED(1) of the Industrial Relations Act 1988 (Cth) certifying that it had not been able to settle the matter by conciliation and that the parties did not elect to have the matter dealt with by consent arbitration.  That matter then became an application in the Industrial Relations Court of Australia.  Interlocutory orders were made which resulted in the application being fixed for hearing before Boon JR, a Judicial Registrar of the Industrial Relations Court, on 1 October 1996.  On 23 September 1996, at a directions hearing, the applicant applied for but was refused an adjournment of the hearing. 

3                     The matter came on for hearing before Boon JR on 1 October 1996.  The applicant appeared in person and made a further application for an adjournment of the hearing which was granted. 

4                     On 13 November 1996, the applicant filed a Notice of Discontinuance of the proceedings in the Industrial Relations Court of Australia.  The respondent subsequently applied for costs thrown away by reason of the adjournment of the hearing on 1 October 1996.  In opposition to that motion, the applicant filed a document in part of which she purported to move for the “cancellation of the Notice of Discontinuance filed on 13 November 1996”.  The Judicial Registrar took the view that she had no power to make an order cancelling the Notice of Discontinuance which the applicant had signed and filed on 13 November 1996.  She proceeded to make an order that the applicant pay the respondent’s costs fixed at the sum of $1,500 in respect of costs thrown away by reason of the adjournment of the hearing on 1 October 1996.  The Judicial Registrar gave her reasons for taking that course. 

5                     I have taken the foregoing factual background from the published decision of Boon JR in the Industrial Relations Court of Australia dated 17 January 1997 in matter number WI 1214 of 1996.

6                     On 14 November 2002, the applicant filed in this Court a document which is described as an application.  There are some 17 respondents named in that document.  They include Bentley Hospital, Australian Nursing Federation, John Negus (described as an independent mediator), six individual solicitors and one firm of solicitors, Worksafe WA, Risk Cover WA, the Australian Industrial Commission, Fremantle Hospital, the Industrial Relations Court of Australia, Dr Lawrence Terrace (described as a psychiatrist assessor for Risk Cover WA) and Mr Victor Smith (described as an investigator for Fremantle Hospital). 

7                     Under the heading “Application” there appears the following:

“1.       For Hearing --- Constructive Dismissal by Bentley Hospital filed at the Industrial Court of WA (WI 96/1214)

 2.        For Hearing --- Unfair Dismissal filed at the Industrial Relations Commission (WA) U60096/00

 3.        Accrued jurisdiction for compensation of pains, suffering, past and future pecuniary loss as a result of respondents’ defamation and negligence, on the ground that various respondents had breached the relevant acts listed-below: …”

8                     There then followed a list of eight Acts and a reference to the Australian Nursing Federation Award. 

9                     Following that list there was a statement “On the grounds stated in the accompanying statement of claim the applicant claims that:” which was in turn followed by 39 paragraphs which set out what appears to be a chronology of certain events between 1989 and May 2000. 

10                  No statement of claim accompanied the application and none has since been filed. 

11                  The application was originally listed for a directions hearing on 29 November 2002.  On 22 November 2002, the applicant wrote to the District Registrar requesting, in effect, an adjournment of the directions hearing.  It appeared from that letter that the applicant had not caused the application to be served on any respondent. 

12                  The appointment for the directions hearing was vacated and the matter was re-listed for directions on 7 February 2003. 

13                  On 30 January 2003, the applicant wrote to the District Registrar requesting a further adjournment of the directions hearing listed for 7 February 2003. 

14                  In that letter the applicant set out various reasons for seeking that adjournment including medical problems and her inability to overcome what she described as “my phobia to approach a lawyer for representation”.  On the same date the applicant submitted a medical certificate which stated that the applicant had “… not been able to overcome her phobic and anxiety state to become able to attend a lawyer.  It is likely that she will be able to in the foreseeable future.” 

15                  On 31 January 2003, the applicant telephoned my then associate.  As a result of something said by the applicant during the course of that telephone conversation in relation to physical attendance at Court, I caused my associate to send a letter to the applicant by fax on 3 February 2003, which omitting formal parts read as follows:

“I refer to your letter dated 30 January 2003 and our telephone conversation on 31 January 2003. 

Justice Carr has asked me to let you know that, should you wish, you may appear at the directions hearing on 7 February 2003 at 9.30 am by telephone. 

The purpose of the directions hearing is to review progress of the matter and make directions for its further progress.  Justice Carr has asked me to let you know that this leave has been granted only in respect of this directions hearing. 

Should you wish to appear by telephone please contact me to confirm that you will be available at telephone number 9310 5910 at 9.30 am on 7 February 2003.” 

16                  On 3 February 2003, the applicant faxed a letter to my associate confirming that she would be available to appear by telephone on 7 February 2003. 

17                  On 6 February 2003, the Hon Mike Board MLA, Member for Murdoch, sent a fax to my chambers stating that he had on that day “met with” the applicant.  Mr Board said in his letter that the applicant wished to postpone the directions hearing for 4 weeks because she had no representation and was in an emotional and distressed state.  I caused a letter to be sent to the applicant confirming that the directions hearing on the following day would not be postponed.  A copy of that letter was sent to Mr Board. 

18                  On 7 February 2003, the directions hearing was called on.  The applicant appeared by telephone.  I asked her whether she had served a copy of the application on any of the respondents.  She said that she had not.  As I understood her, this was due to what she described as “my phobia”.  I explained to the applicant that it was some time since she had lodged the application on 14 November 2002 and that proceedings in this Court had to be conducted with a reasonable degree of expedition.  Her response was as follows: 

“Yes, I understand that.  When I put in my submission on 14 November, I did put it very clearly on page 12 of the submission that it is not my intention to serve the documents on any of the parties.  It was because I was having phobia with the lawyer.  I have to protect my interests, because that was the last day of the six-year period.  I planned originally to go to the Human Rights and Equal Opportunity Commission and also to catch up with the Industrial Relations Commission to issue the notice of termination and then to speak with the Federal Court proceeding, but because it was quite – I hope I have used the right term.  It was quite quickly, you know, forced upon me that the rehearing will be in two weeks.” 

19                  I then made orders in the following terms:

“1.       Applicant to file any affidavits upon which she intends to rely and to serve a copy of the application and copy of each such affidavit on the respondents within 28 days.

 2.        The Court is considering whether to strike this application out as either disclosing no reasonable cause of action or being frivolous or vexatious or an abuse of the process of the Court pursuant to Order 20 rule 2 of the Federal Court Rules.

 3.        The applicant may within 42 days file and serve any written submissions in opposition to such striking out.

 4.        The application is adjourned to 9.15 am on 28 March 2003 for the purposes of determining whether the application should be struck out or whether further directions should be made.” 

20                  A copy of those directions was forwarded by fax to the applicant on 7 February 2003. 

21                  The applicant has not filed any affidavits and there are no affidavits of service on the Court file.  When the matter came on for a directions hearing this morning the applicant appeared.  I asked her whether she had served any affidavits upon which she intended to rely and a copy of the application on the respondents.  The applicant told me that she had served only one respondent, namely the Fremantle Hospital, on 13 March 2003. 

22                  The applicant then told me that she had approached two parliamentarians, who have written to the Nurses Registration Board on her behalf.  She also told me that she has to fill in a form in relation to re-registration as a nurse.  The applicant also told me that she has “finished off” an affidavit last night and that she wants to see a lawyer today or on Monday.

23                  In my view, the applicant has been given sufficient opportunity to place before the court materials to show whether or not she has a reasonable cause of action.  In my opinion, the application does not disclose any reasonable cause of action against the respondents.  Insofar as the applicant appears to be seeking some relief against Bentley Hospital it would appear that she is seeking to re-agitate the matters which she raised in the proceeding before the Industrial Relations Court of Australia to which I have referred earlier.  It would also appear from the last four paragraphs of the factual narrative contained in the application, that the applicant was employed by Fremantle Hospital at some stage but was dismissed on 8 March 2000, that a conference was held at the Industrial Relations Commission on 24 May 2000 and that, so far as the applicant’s claims against the hospitals are concerned, she wishes “… both cases to be heard in the Federal Court, because both cases were linked.” 

24                  However, no factual basis has been disclosed for any cause of action against the Fremantle Hospital (assuming for the time being that that hospital can be sued in that name).  Nor, in my view, has any factual basis for a cause of action been disclosed against any of the other 15 respondents. 

25                  In those circumstances I shall dismiss the application against the Bentley Hospital on the grounds that the application does not disclose any reasonable cause of action against it and also is an abuse of the process of this Court.  The application will be dismissed as against the other respondents on the ground that it does not disclose any reasonable cause of action against them.

Associate:

Dated:              7 April 2003