FEDERAL COURT OF AUSTRALIA

Cutler v The Trustee for McKenzie & Baird Unit Trust [2010] FCA 714

THE COURT ORDERS THAT:

1.                  The applicant be granted leave to amend the statement of claim filed on 14 August 2009 in accordance with paragraphs [7], [8], [15], [18], [19], [22], [23], [24], [25] and [32] of the reasons for judgement delivered this day. 

2.                   The applicant pay the respondent’s costs in the amount of $1,200 in respect of the costs thrown away on 25 February 2010.  

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                                             These reasons for judgment address three issues:  (1) the leave to amend sought by the applicant; (2) the respondent’s application for costs dated 23 March 2010; and (3) whether the matter ought to be transferred to the Federal Magistrates Court. 

2                                             The applicant, Mr Phillip William Cutler, filed an application and statement of claim on 14 August 2009, naming the Trustee for the McKenzie & Baird Unit Trust (‘the Trustee’) as respondent and asserting claims arising out of the termination of his employment as a bus driver.  The applicant was at the time legally represented, but has since decided to proceed as a litigant in person.  The parties have since agreed that Donric Pty Ltd ACN 005 627 092 (‘Donric’), rather than the Trustee, was the applicant’s employer and is the proper respondent, but the Trustee remains the named respondent pending the filing of an amended application and statement of claim.

3                                             In February 2010, the Court was informed that the applicant had terminated his relationship with his legal representatives, had failed to file and serve affidavits and other evidence by the date set forth in an earlier consent order, and desired to amend his application.  I therefore directed the applicant to file a draft amended statement of claim, which was received on 22 February 2010.  The matter was listed for a mention on 25 February 2010 at 9:00 a.m. to discuss how to proceed with the respondent’s objections to the proposed amendment.  Another matter was listed for 9:30 a.m. that morning.  Because the applicant did not appear on time the matter did not go forward.  I ordered that the mention and the current timetable be vacated, and that the matter be listed for a further directions hearing for 26 March 2010.  On 23 March 2010, the respondent filed an application for costs incurred as a result of the applicant’s failure to appear on time for the mention on 25 February 2010.

4                                             All parties were present on 26 March 2010.  At the hearing, it became clear that there were various difficulties with the applicant’s proposed amended statement of claim.  The applicant was permitted to file and serve a fresh version of his proposed amended pleading, along with a draft reply to the respondent’s defence (as certain of the additions the applicant wished to include in the amended statement of claim would more properly be included in a reply to defence), and any submissions or affidavit in opposition to the application for costs, by 6 April 2010. 

5                                             These documents have been filed, together with an affidavit by the applicant explaining why he was unable “to comply with the time requirements of the order of the 31 March 2010”.

LEAVE TO AMEND THE STATEMENT OF CLAIM

6                                             The parties were heard on Mr Cutler’s application to amend his statement of claim on 26 March 2010.  In the course of the hearing, I explained as best I could the nature of a statement of claim and why some of the proposed amendments were inappropriate.  On 7 April 2010, Mr Cutler filed a fresh version of his proposed amended statement of claim, which took account of much of the discussion in court.  These reasons deal with this fresh version to the extent that Mr Cutler continues to press for the amendments that he originally proposed.

7                                             First, I would grant the applicant leave to substitute Donric as the respondent in the place of the Trustee and to amend paragraph 2 of his statement of claim accordingly. 

8                                             Paragraphs 8, 9, 10, 11, 12, 13, 16, 17, 18, 21A, 21C and 25 of the 7 April 2010 version of the proposed amended statement of claim, and the particulars thereto, derive from the original version of the proposed amendments and include some modifications that take account of what was said at the hearing.  The changes to these paragraphs and their particulars are generally small changes to the applicant’s factual case.  While the amended particulars to certain of these paragraphs are not necessarily the sort of thing a lawyer would have drafted, they are acceptable from an unrepresented litigant, and the respondent will not in any event be required to plead to them.  I would grant leave to amend these paragraphs (or particulars thereto) as proposed in the 7 April 2010 version of the proposed amended statement of claim.  

9                                             Paragraphs 14 and 14A are problematic.  The current paragraph 14 alleges:  “The Respondent refused to recognise the result of the ballot, and as a consequence refused to recognise the Applicant as the duly elected DHSR”.  Paragraph 13 alleges that the applicant was elected Deputy Health and Safety Representative, although there is no express reference to a ballot prior to paragraph 14.  In both versions of the proposed amended statement of claim, paragraph 14 now reads:  “On or about 24 November 2008 [the respondent’s General Manager Mr] Nyman began an action in an attempt to remove the applicant from his duly elected position as Deputy HSR”.   In both versions, the particulars describe Mr Nyman’s alleged interactions with an OH&S representative named Sean McCourt, which purportedly resulted in Mr McCourt’s resignation; and, although some of the more egregious language from the particulars in the original version of the proposed amendments has been removed from the 7 April 2010 version, the substance is the same. 

10                                          Paragraph 14A of the 7 April 2010 version alleges:  “The Applicant wrote to Nyman requesting that his OH&S training begin.  Nyman responded with a letter to the Applicant stating that he did not recognise the Applicant[’]s election”.  This essentially duplicates allegations contained in the particulars to paragraph 14A of the original version of the proposed amended statement of claim.  The same allegation is for some reason repeated in paragraph 14 of the applicant’s draft reply.

11                                          During discussion at the hearing of the original version of the proposed amendments, counsel for the respondent asserted that proposed paragraph 14 was a conclusion unsupported by facts, and that the new particulars to that paragraph were argumentative and inappropriate.  The respondent’s counsel also noted the respondent’s position that paragraph 14 of the statement of claim as originally filed was also unsupported by factual allegations. 

12                                          At the hearing, I sought to explain to the applicant what I considered to be the difficulties with the first two versions of paragraph 14.  Unfortunately, the 7 April 2010 version does not meet all these problems.  Some of the particulars to paragraph 14 relating to Mr McCourt have been dropped, but no new particulars of the sort mentioned at the hearing have been added.  Paragraph 14A of the 7 April 2010 version is simply a rearrangement of the previous proposed form of paragraph 14A, and does not address any of the deficiencies identified. 

13                                          At the hearing, in relation to these paragraphs I indicated that it would be preferable for Mr Cutler to set out in his pleading: (1) the date of the ballot, the manner in which it was held, and the result; and (2) whether, and if so how, his employer was made aware of the ballot and the result of the ballot.  Mr Cutler has provided some of this information in paragraph 13 of his reply.  Perhaps information as to how the employer was informed of the ballot is implicit in paragraph 14 of the proposed reply.

14                                          The particulars to paragraph 14 of the statement of claim as originally filed remain sparse.  Regarding the claim “[t]he Respondent refused to recognise the result of the ballot, and as a consequence refused to recognise the Applicant as the duly elected DHSR”, it is now clear that the applicant relies on the conduct of Mr Nyman as set out in the particulars to paragraph 14 in the 7 April 2010 version of the proposed amended statement of claim and also the letter from Mr Nyman referred to in paragraph 14A of that version of the proposed amended pleading. 

15                                          I would not grant the applicant leave to amend paragraphs 14 or 14A as he seeks.  Instead, I would grant the applicant leave to set out as particulars under paragraph 14 of the current statement of claim the particulars to paragraph 14 in the 7 April 2010 version of the proposed amended pleading and reference to the letter from Mr Nyman referred to in paragraph 14A of that version of the proposed amended pleading.

16                                          I doubt that there is much to be gained by requiring more of the applicant in this regard.  While the applicant’s pleading may be deficient in some respects, the respondent has sufficient to understand the case that the applicant wishes to make against it.

17                                          In the current statement of claim, paragraph 20 reads:  “The Applicant on or about 12 February 2009 placed a notice on the drivers’ room notice board.  The notice was removed by Nyman and an argument ensued between the [A]pplicant and Nyman”.  The 7 April 2010 version of the amended pleading would add:  “The notice declared the Applicant to be the Workplace Delegate and among other statements, made [the] comment that the Respondent[’]s current proposal, dated 10 February 2009, was in breach of OH&S legislation.  A copy of the notice is available from the Applicant by arrangement”.  At the hearing, I observed that the particulars the applicant first sought to add to paragraph 20 of his statement of claim presented various kinds of difficulties.  In the 7 April 2010 version, the applicant has removed some of the more problematic of these particulars.

18                                          I would not grant the applicant leave to amend paragraph 20, as he now proposes.  Instead, I will grant him leave to include both the proposed new sentences in the particulars to paragraph 20, immediately under the heading “Particulars”.  While the other particulars to paragraph  20 proposed in the 7 April 2010 may be unnecessary, I would grant the applicant leave to add them in the form indicated in that document.

19                                          I would also grant the applicant leave to add paragraph 20A in the form indicated in the 7 April 2010 version of the proposed amended statement of claim, together with the particulars as set out in that document.  As I indicated at the hearing, the new paragraph 20A raises facts that are arguably part of the applicant’s case.  Whilst the lengthy particulars to paragraph 20A may be unnecessary and their form open to challenge, they do not disadvantage the respondent. 

20                                          Paragraphs 20B and 20C present some difficulty.  In the original version of the proposed amendment, new paragraphs 20B and 20C read as follows:

20B.     On or about 9 March 2009, [t]he [A]pplicant placed a notice on the driver’s room notice board, the notice advised that the continuation of the Election was in breach of a WorkSafe granted stay of proceedings. 

20C.     On or about March 10 2009, the Applicant was given a charter job that required a drop-off only 2 minutes from his home in Essendon.  The Applicant took his unpaid meal break at his home as he had done for the past 6 years.  As the Applicant was leaving his home to return for his pick-up, the Respondent’s General Manager Nyman was at the end of the street.  Previous to this date the Applicant had been covertly informed that his designated bus had been secretly fitted with a tracking device.  The Applicant[’]s  bus was at the time, [sic] the only charter vehicle fitted with such a device.  At the end of the day Nyman attempted to terminate the Applicant’s employment.

Paragraph 20B has been retained in the 7 April 2010 version, with the sentence, “A copy of the notice is available from the Applicant by arrangement” added.  Paragraph 20C has also been retained, although the third and fifth sentences and the word “covertly” in the fourth sentence have been omitted.

21                                          I indicated to the applicant at the hearing that these paragraphs were problematic.  The nature of the “Election” referred to in paragraph 20B is uncertain, and the relevance of the new allegations to the applicant’s claim is not entirely clear.  At the hearing, the applicant stated that the allegations were significant because he had been “set up” on the day following his posting of the notice.  I interpolate here that there is an allegation in paragraph 26 that the applicant’s dismissal on 1 May 2009 “was a result of [his] insistence on the proper application of OH&S standards at the workplace and [his] advocacy on behalf of his fellow employees in that regard”. 

22                                          Whilst the place of paragraph 20B in the applicant’s statement of claim may be doubted, it was clear that the respondent understood the case that the applicant sought to make against it.  Bearing in mind that the applicant lacks legal representation and the allegation of fact is clear enough, I would give him leave to add paragraph 20B as proposed in the 7 April 2010 version of the proposed amended statement of claim.  It would be preferable to include the sentence “A copy of the letter is available from the Applicant by arrangement” as particulars to that paragraph under the heading “Particulars”.

23                                          Paragraph 20C remains a problem, for a number of reasons.  Amongst others, it is constituted by a number of allegations of fact.  Subject to the applicant providing particulars of his allegation that “[on 10 March 2009] [a]t the end of the day Nyman attempted to terminate the Applicant’s employment”, I would grant the applicant the leave to add a paragraph 20C in the following form: 

20C      (a)        On March 10 2009:

(i)         the Applicant was given a bus (“the bus”) for a charter job (“the job”) that required a drop-off not far from his home; and

(ii)        the applicant took his unpaid meal break at his home; and.

(iii)       at the end of the day Nyman attempted to terminate the Applicant’s employment.

(b)        The bus had been fitted with a tracking device.

(c)        The respondent did not tell the Applicant at any time before he commenced the job that the bus had been fitted with a tracking device.

                        PARTICULARS

The drop off was only 2 minutes from his home in Essendon.  The Applicant took his unpaid meal break at home as he had done for the past 6 years.  

[The applicant should add here particulars of his allegation that “[on 10 March 2009] [a]t the end of the day Nyman attempted to terminate the Applicant’s employment”]

If paragraph 20C is amended in this form, the respondent ought to be able to make its own pleading direct enough.  There is little to be gained by requiring anything further from the applicant with regard to this part of the pleading.  A pleading in this form should permit the applicant to put his case as he wishes to put it.

24                                          I would grant the applicant leave to amend paragraph 21 in the manner indicated by the 7 April 2010 version of the proposed pleading.  This version of paragraph 21 clears up some of the confusion that was present in paragraph 21 of the original version of the proposed amendment.

25                                          I would also grant the applicant leave to add paragraph 21B in the form indicated in the 7 April 2010 version of the proposed pleading.  This version of paragraph 21B generally reflects my observations at the hearing.  It would be preferable to include the sentence “A copy of the letter is available from the Applicant by arrangement” as particulars to paragraph 21B, under the heading “Particulars”.

26                                          In the current statement of claim, paragraph 26 consists of a simple allegation:  “The dismissal was a result of the Applicant’s insistence on the proper application of OH&S standards at the workplace and the Applicant[’]s advocacy on behalf of his fellow employees in that regard”.  It is accompanied by the following particulars:

The Respondent’s General Manager Nyman called the Applicant into his office and told him that they were going to terminate the Applicant’s employment based on a third warning for the late pick-up.  The Applicant clearly put to the General Manager that this was illegitimate given previous assurances to him and that the conduct said to constitute a valid reason for the termination was conduct that was condoned by the Respondent when engaged in by other employees.

The Applicant asserted that the dismissal was in relation to the OH&S matters.  The Respondent[’]s General Manager refused to continue the discussion in relation to the dismissal.  The General Manager said that the dismissal was based on performance issues solely and said that the Respondent would rely on the three warnings.  The [A]pplicant continued to assert that the dismissal was based on his OH&S representations.

27                                          In original version of the proposed amendment, the applicant greatly expanded these particulars by adding a “Statement of Applicant” five paragraphs in length.  The “Statement” is a narrative account of the applicant’s version of the events of 1 May 2009, the day of his termination, and is essentially his evidence.  At the hearing, I explained to the applicant that the inclusion of this account in his pleading was inappropriate and the applicant indicated that he understood my comments.

28                                          The applicant has included most of the “Statement of Applicant” in the 7 April 2010 proposed pleading.  While several sentences have been omitted, the material the applicant wishes to add remains inappropriate for inclusion as particulars.  The applicant can present the material as part of his evidence.  It should not be included in a statement of claim, and I would not give the applicant leave to add it.  The particulars as they now stand are sufficient.

29                                          I would not grant the applicant leave to amend in order to add paragraphs 27, 28 and 29 of the 7 April 2010 version of the proposed statement of claim, which were also present in the prior proposed document.  These paragraphs are essentially submissions in response to the respondent’s assertion that the respondent’s employee handbook formed part of the applicant’s contract, which appears in the particulars to paragraph 5 of the respondent’s defence. 

30                                          It was for this reason that I stated at the hearing that I would not grant leave to amend to add paragraphs 27, 28 and 29 but requested instead that the applicant submit a draft reply.  In paragraph 5 of the reply, the applicant denies that the employee handbook formed part of his contract.  This will be sufficient to establish the applicant’s position with regard to this issue. I would not grant leave to include paragraphs 27, 28 and 29 in an amended statement of claim.

31                                          Similarly, paragraph 30 of the 7 April 2010 version of the proposed amended statement of claim is in the nature of a submission.  Paragraphs 31, 32 and 33 of the original version of the proposed amendments, which were similarly objectionable, have now been omitted from the new document, but paragraph 30 has been retained.  As I indicated at the hearing, however, paragraph 30 adds nothing to the pleading and I would not grant leave with respect to it.

32                                          Finally, I would grant the applicant leave to add item E to the prayer for relief, which simply reads “As determined by the Honourable Court”. 

33                                          For the reasons stated, I would grant the applicant leave to amend the statement of claim in conformity with these reasons.

Respondent’s Application for Costs

34                                          The respondent’s application is brought by way of motion pursuant to s 666 of the Workplace Relations Act 1996 (Cth) (‘the Workplace Relations Act), which continues to apply to this action pursuant to s 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).  Section 666 provides, in relevant part, as follows:

(1)        Subject to this section, a party to a proceeding under section 663 [which provides Federal Court jurisdiction over actions for unlawful termination under section 657] must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:

            (a)        instituted the proceeding vexatiously or without reasonable cause; or

            (b)        caused the costs to be incurred by that other party because of an                                     unreasonable act or omission of the first mentioned party in                                  connection with the conduct of the proceeding.

35                                          In Bahonko v Sterjov (2008) 166 FCR 415 at 417 [6], the Full Court of this Court considered the application to a self-represented litigant of the costs provision of the Workplace Relations Act as it then applied (a provision substantially identical to s 666).  The Full Court (Gyles, Stone and Buchanan JJ) observed:

Normally, the Court attempts to ensure that [lack of representation] does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal.

I drew the applicant’s attention to these principles at the hearing on 26 March.  I further explained to the applicant:  “You need to provide some explanation as to why you were late before I would even entertain . . . a submission from your side that I shouldn’t regard it as unreasonable”.

36                                          The respondent’s solicitor, Mr Samuel Eichenbaum, swore an affidavit in support of the application for costs.  Mr Eichenbaum states as follows regarding the morning of 25 February 2010:

On February 25 2010, I attended the Federal Court with Counsel Ms Simone Bingham.  The matter had been listed for 9.00am[;] however there was no appearance by the Applicant by 9.15am.  At 9.15am [court staff] told us that Her Honour Justice Kenny would commence the matter at 9.30am.  We left the court room and returned just before 9.30am and were met by a member of Her Honour’s staff to say that Her Honour had started her next matter and would hear us at 10.10am[;] however she hadn’t yet seen any sign of the Applicant.  Ms Bingham and I entered the court room at just before 10.10am to find the other matter still running.  Her Honour interrupted the other matter to ask us whether we were able to wait at least another 30 minutes but gave us the option not to.  Neither counsel nor I were in a position to [wait further].

This description accords with the Court’s recollection of the facts.

37                                          The applicant filed written submissions and an affidavit in opposition to the application for costs.  The affidavit was filed in two forms:  an unsworn version filed on 7 April 2010, and a sworn version, which was filed on 9 April 2010 and for unknown reasons does not include the middle two pages included in the unsworn version.  By his written submissions, the applicant claimed that he was “not responsible for the abandonment of the mention of th[e] matter”; had not acted unreasonably; and had not caused the respondent to incur any costs.  Rather, he attributed the “abandonment”, as he put it, to the actions of Mr Eichenbaum.

38                                          The applicant’s affidavit sets forth the facts on which the applicant bases his position.  In the affidavit, the applicant does not deny that he failed to appear on time for the hearing.  Despite my warning at the hearing, he does not offer any clear explanation for this failure, stating only that “[d]ue to unforeseen circumstances, [he] was forced to travel by private car in an attempt to arrive on time”.  The unforeseen events are not specified, although there are vague references in the unsworn document to “train cancellations” and “horrendous traffic congestion”. 

39                                          The document which has been sworn contains no further explanation for the applicant’s lateness.  More detail is provided in the middle two pages omitted from the sworn affidavit.  Even if it had been sworn, it would not have made a difference to my analysis. 

40                                          In the unsworn document, the applicant states that he had a telephone conversation with a member of the Court’s staff, during which he told her that “[his] perceived lateness was not [his] fault”.  He states that this conversation “led [him] to believe that [his] lateness was not going to cause any problems”.  Although the applicant does not indicate it clearly, the contact between him and court staff was the result of court staff’s attempts to ascertain the applicant’s whereabouts, rather than any initiative on his part to inform the Court of his circumstances.  The applicant further states as follows:  he entered the courtroom after arriving at the court building at a time not specified in the affidavit; after another matter was called, he eventually left the courtroom and “wandered the court[’]s floor”; he was eventually informed by court staff that, as the respondents’ representatives had been told, the matter would be heard at 10:10 a.m.  The applicant’s description of what transpired at that time accords, in fact if not in characterization, with Mr Eichenbaum’s affidavit.

41                                          The applicant’s submissions essentially ignore his own actions, in favour of focusing on the fact that the matter did not proceed at 10:10 a.m. in an attempt to shift blame to Mr Eichenbaum.  The applicant’s position is that Mr Eichenbaum committed himself to be available to deal with the matter for the entire morning of 25 February 2010, yet failed to inform the Court that he would not be available after 10:10 a.m.  He thus attributes the “abandonment” of the matter to Mr Eichenbaum.  The applicant also states that Mr Eichenbaum should have taken steps to inform the Court of the applicant’s late arrival and should have attempted to interrupt the proceeding before the Court before 10:10 a.m. in order to have the matter heard.  He suggests that, had the applicant been a solicitor rather than a self-represented litigant, Mr Eichenbaum would have taken these actions.

42                                          I do not accept the applicant’s position.  Mr Eichenbaum’s obligation to the Court and to the applicant was to appear in court at the time appointed for the mention, not to ignore all other business for the entirety of the morning to accommodate the applicant.  Mr Eichenbaum complied with this obligation.  Moreover, under s 666, the focus must be on the reasonableness of the applicant’s actions, not his perceptions of the actions of others.

43                                          The applicant failed to appear on time for the mention, and made no effort to inform the Court of his inability to arrive on time.  I informed the applicant at the hearing that he needed to provide an explanation for his lateness, but he has not provided one (other than vague references to train delays and traffic conditions in the unsworn affidavit).  The unreasonableness of the applicant’s behaviour is underscored by his apparent refusal to recognize any responsibility on his part.  Although the applicant admits that he failed to arrive on time for the mention, he apparently views Mr Eichenbaum as to blame due to his inability to delay other business on the applicant’s account.  Having regard to all the circumstances, I conclude that the applicant acted unreasonably and that the respondent incurred costs as a result.  Accordingly, the respondent is entitled to an order for costs. 

44                                          Mr Eichenbaum states in his affidavit that the respondent incurred $1,951.00 in costs related to the mention scheduled for 25 February.  These costs are detailed in a letter to the applicant exhibited to Mr Eichenbaum’s affidavit.  In all the circumstances, I conclude that an appropriate award of costs is $1,200.00 in respect of the costs thrown away on that date.

45                                           The respondent also applied for the costs of this application, but directed no argument to this point.  Given s 666 of the Workplace Relations Act, the respondent’s entitlement to such costs is not so obvious as to justify the order sought without argument, and I would not make this order.    

TRANSFER TO THE FEDERAL MAGISTRATES COURT

46                                          At the directions hearing on 26 March 2010, I indicated that I was considering transferring the matter to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) and O 86 r 7 of the Federal Court Rules, on the basis that the matter could be more expeditiously dealt with there at less cost.  Neither party opposed transfer.  The Federal Magistrates Court would have jurisdiction over the matter under s 847(4) of the Workplace Relations Act, which remains in effect in relation to this matter despite repeal, pursuant to s 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

47                                          There are factors in favour of transfer.  This case is not exceptional or novel.  It involves no question of general importance and can be heard and determined within the resources of the Federal Magistrates Court.  As noted, the parties have expressed no objection to transfer.  Costs would generally be lower in the Federal Magistrates Court.

48                                          Since the directions hearing, however, I have made inquires of both the Federal Magistrates Court and the relevant officers of the Victoria Registry of this Court.  It appears that the matter could be heard no earlier in the Federal Magistrates Court than in this Court.  Further, as the docket judge, I now have some familiarity with the matter, and it may be more expeditious and therefore less costly overall if I retained management of the matter.  On balance, this seems to me to be the preferable course in the interests of justice, and I shall not transfer the proceeding at this stage.  Rather, I shall fix a timetable designed to have the matter ready for trial sometime between October and the end of November.  Before doing so, I shall give the parties an opportunity to be heard on this timetable.  

Associate:

Dated:         8 July 2010