FEDERAL COURT OF AUSTRALIA
Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191
ORDERS
Applicant | ||
AND: | THE HEAT GROUP PTY LTD (ACN 092 431 430) First Respondent GILLIAN FRANKLIN Second Respondent PETER KADLECIK (and others named in the Schedule) Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Further Amended Statement of Claim filed on 7 October 2014 be struck out.
2. The applicant have leave to file and serve, within 21 days, a Second Further Amended Statement of Claim confined to the allegation that the termination of her employment by the first respondent was done in contravention of the Disability Discrimination Act 1992 (Cth).
3. If the applicant does file and serve a Second Further Amended Statement of Claim conformably with Order 2 above, she also file and serve, at the same time, a Further Amended Originating Application confined to a claim based on the allegation referred to in that order.
4. Other than as provided for in Orders 2 and 3 above, the proceeding be dismissed.
5. If the applicant does not file and serve a Second Further Amended Statement of Claim and a Further Amended Originating Application conformably with Orders 2 and 3 above, the proceeding thereupon be dismissed.
6. Within 28 days, the applicant provide security for the respondents’ costs of the proceeding –
(a) in the sum of $25,000; and
(b) in a form acceptable to the Chief Executive Officer of the Federal Circuit Court of Australia.
7. If security is not provided conformably with Order 6 above, the proceeding thereupon be dismissed.
8. With respect to the relief sought in para 7 of the respondents’ Interlocutory Application filed on 28 November 2014, the parties file and serve in this court written submissions as follows:
(a) the applicant, within 21 days;
(b) the respondents’ in reply, if necessary, within a further seven days.
9. With respect to the costs of –
(a) so much of the proceeding as is dismissed pursuant to Order 4 above; and
(b) the respondents’ Interlocutory Application filed on 28 November 2014;
the parties file and serve in this court written submissions as follows:
(i) the respondents, within seven days;
(ii) the applicant, within a further 14 days;
(iii) the respondents in reply, if necessary, within a further seven days.
10. If the proceeding is dismissed under Order 5 or Order 7 above, the parties file and serve in this court written submissions as to the costs of the proceeding, as follows:
(a) the respondents, within seven days after the dismissal of the proceeding;
(b) the applicant, within a further 14 days;
(c) the respondents in reply, if necessary, within a further seven days.
11. Subject to the following order, the proceeding be transferred to the Federal Circuit Court of Australia.
12. Pursuant to s 32AB(7) of the Federal Court of Australia Act 1976 (Cth):
(a) subject to Order 6 above, all questions as to the costs of the proceeding while it was pending in this court, including the consideration and determination of matters arising under Orders 8, 9 and 10 above, be dealt with in this court;
(b) upon the transfer of the proceeding to the Federal Circuit Court of Australia, Orders 2, 3, 5, 6, and 7 above thereafter stand as orders of that court;
(c) subject to the orders made this day, the future conduct of the proceeding be in accordance with the orders and directions given by the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
JESSUP J:
INTRODUCTION
1 By Interlocutory Application filed on 28 November 2014, the respondents, The Heat Group Pty Ltd (“the company”) and five individuals, seek the striking out of the Further Amended Statement of Claim under r 16.21 of the Federal Court Rules 2011 (Cth) upon the grounds that it is ambiguous, that it has no reasonable prospect of success, that it is vexatious, that it fails to disclose a reasonable cause of action and/or that it is an abuse of process. If the Further Amended Statement of Claim is struck out, the respondents resist any suggestion that the applicant, Jo-Anne Finch, should have leave to replead. Alternatively, the respondents seek security for costs. Finally, the respondents seek an order that the applicant pay their costs thrown away in respect of her Amended Statement of Claim dated 19 April 2013.
2 The proceeding was commenced on 21 September 2012. On 19 April 2013, the applicant filed an Amended Originating Application and an Amended Statement of Claim. On 7 October 2014, the applicant filed the Further Amended Statement of Claim which is the subject of the present application.
3 In the Amended Originating Application, the applicant claims damages under the Trade Practices Act 1974 (Cth) (“the TP Act”), under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), under the Sex Discrimination Act 1984 (Cth) and under the Disability Discrimination Act 1992 (Cth) (“the DD Act”). The applicant also seeks the setting aside of the order made in the Victorian Court of Appeal on 5 October 2010 in Finch v The Heat Group Pty Ltd [2010] VSCA 256, the order made by the Victorian Civil and Administrative Tribunal (“VCAT”) on 29 June 2010 in Finch v The Heat Group [2011] VCAT 802, the order made by the Court of Appeal on 8 April 2011 in Finch v The Heat Group Pty Ltd [2011] VSCA 100 and the order made by the High Court on 29 April 2011 in Finch v The Heat Group Pty Ltd [2011] HCA Trans 111.
THE FURTHER AMENDED STATEMENT OF CLAIM
4 In the Further Amended Statement of Claim, the applicant alleges that the second respondent, Gillian Franklin, was, at all material times, the Managing Director of the company. She alleges that the third respondent, Peter Kadlecik, was, until June 2006, the National Field Manager of the company and was, from then until February 2007, the National Accounts Manager of the company. She alleges that the fourth respondent, Adam White was, from June 2006 until February 2007, the National Field Manager of the company. She alleges that the fifth respondent, John Simcocks, was, until February 2007, the National Sales Manager and Executive of the company. She alleges that the sixth respondent, Darren Scotti, was, at all material times, the Chief Executive Officer and Executive including payroll and personnel of the company.
5 The applicant alleges that she commenced her employment with the company in June 2002 as Territory Manager, Victoria. She alleges that, on 14 June 2005, she was promoted to the position of State Manager, Victoria.
6 As alleged, the contract of employment on which the applicant relies is constituted by two contracts, her original one dated 21 June 2002 and her promotional one dated 14 June 2005. She alleges that the contract contained the terms set out in those separate contracts, terms derived from information contained on the company’s website (including a statement on the website that –
[t]he Heat Culture is honest, hard working, creative, dynamic and competitive, striving for excellence in everything we do. Heat prides itself on being an Employer of Choice with a passion for promoting choice for workers and supporting and encouraging family-friendly environments. Heat is highly regarded for its innovative policies and support for the Heat team …),
terms derived from various “representations of policies and procedures and public declarations” that were in place at the time of the applicant’s employment, including that set out above and those referred to in the two succeeding paragraphs below, a term that the company would be honest and not conduct itself without reasonable and proper cause in any manner likely to destroy or seriously to damage the relationship of trust and confidence between the parties, a term that the company would abide by its policies and procedures, legal obligations and public declarations, a term reflective of a common law duty of care to avoid exposing the applicant to unnecessary risk of injury, including psychiatric injury and harm, a term that the company would provide a safe system of work and take all reasonable steps to protect the safety of the applicant, a term that the company would cooperate in doing the acts and things that were necessary for the performance of the contract, a term that the company would provide the applicant with the right to work in an environment free from bullying and unlawful discriminatory conduct leading to termination of employment, a term that the company would not engage in conduct likely to undermine the trust and confidence required for the employment relationship to continue in the manner envisaged by the contract, and a term imposing on the company a duty to act fairly and reasonably, including not causing harm to the applicant’s personal or professional reputation, and not causing injury, by diligently responding to the applicant’s complaints, by managing its discipline and complaints process, and by not making wrongful allegations against the applicant.
7 The applicant alleges that employee benefits were publicised and known to employees through the interview process, appointment letters, the induction process and the company’s website. She alleges that, after the company’s Policy Handbook (“the handbook”) was introduced in around 2002 to 2003, it was announced to employees of the company, put on the website, given to department heads, made available to employees through computer shared drives, referred to in letters to new staff, placed on the company’s intranet site once that site was developed in March 2005 and amended when new policies were introduced. She alleges that the handbook included information under various headings, namely, About this Handbook, Company Policies/Culture/Values, Company Rules, Conduct and Professionalism, General, Bullying, Grievance Policies, Grievance Procedures, Maternity Payment, Health and Safety, Misconduct and Reprimands and Warnings.
8 The applicant alleges that the company made a number of public declarations, namely, that it was an employer of choice and that it had policies and procedures in place which would be abided by. She alleges that she relied on those policies and procedures and was induced thereby to enter into and to continue with her contract of employment.
9 The applicant alleges that, between September 2005 and January 2007, she was issued with reprimands and warnings by the company on seven occasions, namely –
26 September 2005, where it was wrongfully alleged that the applicant had bullied another staff member;
16 June 2006, where it was wrongfully alleged that the applicant had bullied the same staff member, that she had also bullied two other staff members and that head office had made complaints about her, and where she was verbally abused by Mr Simcocks;
5 July 2006, where further wrongful allegations of bullying by the applicant were made and where she was intimidated into signing a written warning;
28 July 2006, where it was wrongfully alleged that she was not a good manager and that her performance was poor;
22 September 2006, where it was wrongfully alleged that her personal sales figures were poor, that her State sales figures were poor and that she was a “crap” manager;
10 October 2006, where it was again wrongfully alleged that her personal sales figures were poor, that her State sales figures were poor and that she was a poor manager, and where she was told that if her figures did not improve her employment would be terminated two weeks later; and
4 January 2007, where it was again wrongfully alleged that her personal sales figures were poor, and that her State sales figures were poor.
10 The applicant alleges that, by reason of the reprimands/warnings of 16 June and 5 July 2006, and on the instruction of Ms Franklin, Mr Kadlecik instructed Mr White to organise a leadership course for the applicant. This became public knowledge which, together with the reprimands/warnings themselves, caused the applicant “even further humiliation, notwithstanding” that the applicant had raised numerous grievances advising that the allegations against her were unfounded and false, and that Mr Kadlecik had, on 21 June 2006, advised Ms Franklin and Mr Simcocks that the applicant should be immediately dismissed.
11 The applicant alleges that, over the period May 2006 to January 2007, she had pregnancy complications which involved severe cramping and vaginal bleeding, and which required her to be rushed by ambulance to hospital with a suspected miscarriage on 28 July, 23 September, 4 and 11 October and 16 November 2006, on the last of which occasions she was hospitalised for three days and injected with steroids due to medical advice that she was going to lose her child. Ms Franklin, Mr White and Mr Scotti were aware of these events. The applicant alleges that, on 16 February 2007, her daughter was born and was disabled.
12 The applicant alleges that, on 12 October 2006, her doctor advised her that she was unfit for work. She informed Ms Franklin and Mr White accordingly.
13 The applicant alleges that, on 24 October 2006, she lodged a WorkCover claim. On 31 October 2006, the company denied any wrongdoing. Witness statements provided to the WorkCover inspector by Ms Franklin and Mr Kadlecik on 13 November 2006 disagreed with the applicant’s version of events and included references to the wrongful allegations that she had bullied her staff and was not performing. On 17 November 2006, the WorkCover claim was rejected. At that time, the applicant was ill, was facing financial hardship, experienced increased stress by having to appeal against the rejection of her claim and experienced increased distress due to her character being besmirched by the matters set out in the witness statements of by Ms Franklin and Mr Kadlecik. The applicant alleges that the rejection of her WorkCover claim was overturned in subsequent conciliation after she was asked to provide, and did provide, documentary evidence in support of her claim.
14 The applicant alleges that, on 12 December 2006, Mr Scotti sent her a letter enclosing what was said to be a lawful direction that she obtain a report from her treating practitioner detailing her current and future prognosis, that she provide her contact details, that she return “company belongings” by 14 December 2006, that she contact Mr Scotti to attend an urgent meeting and that she respond promptly. The applicant alleges that she advised Mr Scotti that she was too ill to attend and had been caused a severe amount of additional stress both prior to and after his demand to attend an urgent meeting.
15 The applicant alleges that Mr Scotti insisted on attending her home to collect the company’s belongings, which he did on 16 December 2006.
16 The applicant alleges that, in response to Mr Scotti’s request, she provided the company with a report from her treating practitioner dated 15 December 2006. In that report, it was stated that the applicant was suffering from an adjustment disorder, secondary to stress occurring in the workplace, resulting in anxiety and depression. She was unlikely to be fit for work until the “stress issues/conflict that precipitated the episode was resolved”. The applicant alleges that Mr Scotti ignored this advice, and did not “action or follow up with the applicant regarding this return to work plan”. Nor did he provide any alternative plan.
17 The applicant alleges that the reprimands and warnings referred to in para 9 above were misleading and deceptive in that they represented the level of the applicant’s sales incorrectly, wrongfully alleged that she had been engaged in bullying and wrongfully alleged that she had poor staff relations. In this part of the Further Amended Statement of Claim, there is also an allegation that these reprimands and warnings “were misleading and deceptive in that they … her work performance ….” As written, this allegation is unintelligible, but I take it that the applicant intends to allege that the reprimands and warnings were based on false assessments of her work performance, or similar.
18 The applicant alleges that those representations were made in trade and commerce in contravention of ss 52 and 53B of the TP Act and ss 18 and 153 of the Australian Consumer Law (“the ACL”), Sched 2 to the Competition and Consumer Act 2010 (Cth), when in fact the applicant had good sales and work performance, when she had not been engaged in bullying, when she had good staff relations and when she ought not to have been the subject of incorrect assessments of her management style and sales performance and should not have been the subject of warnings and reprimands. She alleges that the warnings and reprimands were relied on by the respondents in assessing her work performance and her “status in the [c]ompany”.
19 The applicant alleges that, prior to the administration of each of the warnings and reprimands, the respondents failed to abide by the policies and procedures of the company and its legal obligations, thereby breaching the applicant’s contract of employment and the respondents’ duty of care to her. On an “inter alia” basis, the respondents’ failings are said to have been their failure to ensure that human resources personnel were involved with the reprimands, warnings, meetings “and demands”, their failure to ensure that policies and procedures were being followed in relation to the reprimands, warnings, meetings and demands, their failure to ensure that the allegations in support of the reprimands and warnings were justified with evidence in support of them and did not contain false allegations that were damaging to the applicant’s health and reputation, their failure to ensure that the applicant was being treated fairly, appropriately, in a dignified manner and in a way that did not involve a risk to her health and safety, their failure to provide the applicant with a list of allegations against her, their failure to investigate her defence to the allegations made against her prior to the issue of the reprimands and warnings, their failure to make notes of the applicant’s responses in defence and to investigate those responses to ensure that the reprimands and warnings required further investigation prior to being issued or were unjustified or unwarranted and their failure to investigate the applicant’s grievances about the treatment she was receiving. Additionally, it is alleged that Ms Franklin did not speak to any of the applicant’s staff to ascertain if the allegations made against the applicant were correct or warranted reprimands or warnings, did not check the applicant’s sales figures to ensure their accuracy and did not speak to the applicant to seek more information.
20 The applicant alleges that, by reason of the matters alleged against the respondents, they fundamentally breached her contract of employment, the company’s policies and procedures, and “acted with a reckless indifference to the harm it was likely to cause, and did cause.” She alleges that they engaged in misleading, deceptive and unconscionable conduct in contravention of ss 51AA, 51AB, 52 and 53B of the TP Act. And she alleges that they engaged in negligent conduct and breached “its” (presumably the company’s) duty of care including bullying “in contravention within the meaning of the Act and the Contract of Employment”.
21 The applicant alleges that, on 11 March 2011, the company wrongfully terminated her contract of employment, citing her illness as a ground for the termination. She alleges that the decision to do so had been made in December 2010. Notwithstanding that there had been four years in which the company might have dismissed the applicant, it did not do so until just after it had received, on 17 December 2010, a report from the applicant’s treating doctor dated 16 November 2010 advising that the applicant exhibited 16 out of 20 of the items on a depression inventory, that the applicant was a significant risk to her own life, that he (the doctor) would re-assess the applicant daily and, if there were no improvement in the applicant’s state, he (the doctor) would arrange for a crisis assessment and triage team to assess her with a view to her ongoing supervision. The applicant alleges, accordingly, that she had been dismissed in circumstances where her wellbeing was in jeopardy, and that it had been “opportunistic and callous” to dismiss her while she continued to suffer an injury sustained in the course of her employment. She also alleges that she was dismissed immediately after the finalisation of “the last hearing at the Tribunal”. That event, not previously mentioned in the Further Amended Statement of Claim, appears to have been a reference to a lengthy hearing of an application which the applicant made in VCAT, as to which more will be said below.
22 Whether or not an allegation in its own right, it is said in the Further Amended Statement of Claim that the applicant relies on the certificate of the Human Rights Commission given on 24 October 2012 in respect of her disability discrimination claims, and the respondents’ refusal to respond to the Commission’s question as to how they would suffer financial detriment if they had not terminated the employment of the applicant when they did.
23 The applicant alleges that the termination of her employment was unconscionable and wrongful, and in breach of her contract of employment, in that the respondents failed to follow the company’s policies and procedures relating to the grievances referred to in paras 6-8 below, the reprimands and warnings referred to in para 9 above, and the grievances referred to in paras 30-42 below. It is alleged that the respondents precipitated the applicant’s injury and caused it to worsen, that they failed to abide by their duty of care to involve a human resources staff member in the reprimands, warnings and grievances, that they attempted to have the applicant resign from her employment in December 2006 (as to which, see para 41 below), that they failed to follow the advice of the applicant’s doctor as to what was required to allow the applicant to return to work, that they failed to follow the applicant’s reasonable adjustment requests in order for her to return to work (as to which see para 24 below), and that they did not approach the applicant with a return to work plan. The applicant alleges that the respondents were aware that the injury would continue and/or worsen if they failed to act on “this advice” (presumably the doctor’s), but made requests which “additionally disallowed her to return to work”. She alleges that, even if she had not been performing, the company’s policies acknowledged that “bullying can result in under-performance, absenteeism, stress-related illness” and that “grievances which are not addressed have the potential to grow into major problems that can cause tension, low morale and reduce performance”.
24 The applicant alleges that the company initiated the termination of her employment by its failure to follow policies and procedures to ensure that “the events did not occur in the first instance” and to investigate the applicant’s grievances to stop the events from further occurring. What the company did, rather, was “maliciously proceeding on with wrongful inaccurate and oppressive warnings notices, resulting in unconscionable conduct and disallowing the applicant to perform in her functions and obligations necessary to discharge the contract of employment”. The applicant alleges that the company failed to make any reasonable adjustments prior to the termination of her employment to allow her to return to work. She alleges, in effect, that she was treated unfavourably on account of her injury, and that the company had no intention of allowing her to return to work, and always intended to terminate her employment. She alleges that the respondents refused to answer the question from the Human Rights Commission as to the financial hardship they would suffer if the applicant’s employment had not been terminated. She alleges that the company did not in fact suffer any such hardship as she was on WorkCover payments and not in receipt of superannuation payments. She alleges that the company’s failure to address her numerous grievances caused her reputation to be defamed. She alleges that, as a result of the matters alleged, if and when she were well she would be unemployable.
25 The applicant alleges that, in relation to the termination of her employment, the company and Ms Franklin fundamentally breached her contract of employment and the company’s policies and procedures and acted with a reckless indifference to the harm which the termination was likely to cause, that they engaged in misleading, deceptive and unconscionable conduct in contravention of ss 51AA, 51AB, 52 and 53B of the TP Act and ss 18 and 153 of the ACL, that they engaged in negligent conduct and breached their duty of care “including bullying, in contravention within the meaning of the Act and the Contract of Employment”, that they engaged in discriminatory conduct in contravention of ss 5, 6, 10, 11, 15(2)(c), 21A, 21B and 42 of the DD Act, and that they engaged in conduct in contravention of ss 21(1), 22(1)(a) and (b), 32 and 76 of the OHS Act.
26 The applicant alleges that, on the birth of her child on 16 February 2007, she was entitled to twelve weeks’ maternity leave and that, on the termination of her employment, the company and Ms Franklin refused to pay this “maternity payment”.
27 The applicant alleges that, on the termination of her employment, Ms Franklin refused to pay her the “statutory right of long service leave”.
28 The applicant alleges that she “exercised her workplace right within the meaning of the Act and the Contract of Employment” and raised a grievance with Ms Franklin on 28 January 2011 (as to which see para 33 below) which was not addressed. She also alleges that she was not provided with a separation certificate or reference letter, as she had requested.
29 The applicant alleges that, by reason of the matters referred to in paras 26 and 27 above, the company and Ms Franklin fundamentally breached her contract of employment and the company’s policies and procedures and acted with a reckless indifference to the harm likely to be caused, and in fact caused, thereby. She alleges that, by reason of the same matters, the company and Ms Franklin engaged in misleading and deceptive conduct in contravention of ss 52 and 53B of the TP Act and ss 18 and 153 of the ACL. Additionally, she alleges that, by reason of the matters referred to in para 28 above, the company and Ms Franklin engaged in conduct in contravention of their legal obligations pursuant to the contract and s 58 of the Long Service Leave Act 1992 (Vic) (“the LSL Act”).
30 The applicant alleges that she raised grievances with the company on the following occasions:
on 25 May 2006, regarding 11 additional tasks, outside her contract of employment, that had been assigned to her, and the impact that those tasks were having on her and her role;
from June to October 2006, regarding the unpreparedness of Messrs Kadlecik and White to support her in her contention that one of her staff, a Mr Kemp, was underperforming and needed training;
on 8 June 2006, regarding errors in the reporting of sales results in her territory, in circumstances where she had been obliged to assume sales responsibility for the top 20 customers but sales made to them had not always been recognised in her own figures, and where the erroneous results were distributed nationally, to the detriment of her standing;
during 2005 and 2006 generally, regarding the resentment that was emerging in her staff as to the generous salary and remuneration that was paid to Mr Kemp, when he was the poorest performer of all of her staff;
in June 2006, regarding Mr Kadlecik’s refusal of her request that he examine the figures of her and her staff.
31 The applicant alleges that, on 16 June 2006, the State Manager for New South Wales, a Mr Duggan, resigned and, in doing so, raised a grievance with Mr Simcocks in which he mentioned his concern for the applicant’s wellbeing and the treatment that she was receiving from Mr Kadlecik. An aspect of that had been an email dated 9 June 2006 in which Mr Kadlecik had publicly berated the applicant.
32 The applicant alleges that, on 21 September 2005, she requested that Mr Simcocks sit in on the meeting programmed for 26 September 2005 from which she received a warning/reprimand. She contended that Mr Kadlecik was “managing her out”, but Mr Simcocks’ response was that the applicant was in a senior position and should deal with the issue herself. The applicant alleges that, from that month at least, Mr Simcocks knew or ought to have known that Mr Kadlecik was “incapable of acting in his position professionally, adequately and appropriately, and capable of conduct that could cause harm”.
33 The applicant alleges that, over the period June 2006 to March 2011 (although she mentions no specific instance between January 2007 and March 2011) she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 16 June 2006 were unfounded and false. By either written or oral communication, these grievances were communicated to one or more of the respondents on 16, 17, 19 (twice), 22, and 26 June 2006, on 28 July 2006, on numerous occasions in August and September 2006, on 22 September 2006, on 12 October 2006, on 21 November 2006, on 16 December 2006, on 18 January 2007 and on 1 March 2011. The applicant alleges that, from June 2006 at least, Ms Franklin knew or ought to have known that Mr Kadlecik and Mr Simcocks were “incapable of acting in their positions professionally, adequately and appropriately, and capable of conduct that could cause harm”. The applicant also alleges that, on 16 June 2006, her husband contacted Ms Franklin and Mr Simcocks by telephone and raised his concerns for the applicant’s wellbeing.
34 The applicant alleges that, on 5 July 2006 and on all the dates listed in the previous paragraph from 28 July 2006 to 1 March 2011, she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 5 July 2006 were unfounded and false.
35 The applicant alleges that, on 28 July 2006 and on all the dates listed in para 33 above from August 2006 to 1 March 2011, she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 28 July 2006 were unfounded and false. The applicant also alleges that, from August and September 2006 at least, Mr White knew or ought to have known that Mr Kadlecik was “incapable of acting in his position professionally, adequately and appropriately, and capable of conduct that could cause harm”.
36 The applicant alleges that, on 22 September 2006 and on all the dates listed in para 33 above from 12 October 2006 to 1 March 2011, she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 22 September 2006 were unfounded and false.
37 The applicant alleges that, on 12 October 2006 and on all the dates listed in para 33 above from 12 October 2006 to 1 March 2011, she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 12 October 2006 were unfounded and false. She alleges that it was Mr White who had asked her to attend the disciplinary meeting on 12 October 2006. She alleges that she advised Ms Franklin of certain concerns which she held about Mr White, and said that she was being dealt with in breach of the company’s policies and procedures, was being bullied and intimidated and was concerned about her own wellbeing and that of her unborn child. Notwithstanding that, Ms Franklin said that it was a matter of urgency that the applicant attend the disciplinary meeting. The applicant also alleges that, from October 2006 at least, Ms Franklin knew or ought to have known that Mr White was “incapable of acting in his position professionally, adequately and appropriately, and capable of conduct that could cause harm”.
38 The applicant alleges that, on 18 January 2006 and 1 March 2011, she raised grievances to the effect that the allegations the subject of the reprimand/warning administered to her on 4 January 2007 were unfounded and false.
39 The applicant alleges that, on numerous occasions in September and October 2006, she discovered many errors regarding her sales figures in relation to sales made to her customers, promotions sold to her customers, new business she had obtained and budgets not being removed from the system relating to customers that had closed their accounts in Victoria. These erroneous figures resulted in the applicant’s personal and State figures being incorrect. The applicant alleges that she raised many grievances with Mr White about these errors in these months, but they were never addressed. She further alleges that warnings and reprimands continued to be administered to her based upon the erroneous figures, and the figures themselves were distributed nationally to all employees, smearing and besmirching her professional reputation.
40 The applicant alleges that, on 21 November 2006, she raised a grievance with Mr Scotti about the spread through the company nationally of the false allegations made against her by way of the reprimands and warnings referred to, including the allegation that she had caused a staff member to suffer mental stress. She told him that she was being unjustly publicly humiliated, and her personal and professional reputation smeared and besmirched. She alleges that Mr Scotti said there was nothing much he could do about it and that she should not worry about things she could not control. He pressured her to tell him how she found out. The applicant alleges that, from November 2006 at least, Mr Scotti knew or ought to have known that Mr Kadlecik, Mr White and Mr Simcocks were “incapable of acting in their positions professionally, adequately and appropriately, and capable of conduct that could cause harm”.
41 The applicant alleges, when Mr Scotti visited her home on 16 December 2006, she requested the establishment of a formal dispute resolution process in relation to the reprimands and warnings she had received, she advised that she wished to come back to work, she asked if she might report to someone other than Messrs Kadlecik and White, she requested a transfer to another department, she said the events had made her very distressed, she said that she wished to work in a safe environment and to be treated fairly; and she became severely distressed. She alleges that, in response, Mr Scotti pressured her to resign with one month’s salary. He did not address her grievance, but issued a further written warning to her on 4 January 2007, knowing that the sales figures on which it was based upon were erroneous.
42 The applicant alleges that, on 1 March 2011, she raised a grievance by letter to the chairman of the company, Geoff Morgan, in which she expressed her concerns about the unfairness of the termination of her employment and the defamation of her character, and requested the provision of a separation certificate and reference. The company acknowledged that letter, but provided neither a separation certificate nor a reference.
43 The applicant alleges that the respondents’ conduct in relation to her grievances between September 2005 and March 2011 was unconscionable by reason of her being a person under a disability, of the relative strength and bargaining position of the company by comparison with that of herself, of the misleading, deceptive and unconscionable conduct which she alleged, of the company engaging in conduct which was not reasonably necessary for the protection of its legitimate interests, of the administration of the reprimands and warnings referred to, and of the bad faith in which the respondents had acted in the area of those reprimands and warnings. She alleges that she was subjected to undue stress and pressure exerted on her by the unfair tactics used by the company towards her over a lengthy period of time.
44 The applicant alleges that the respondents, in breach of her contract of employment, failed to abide by the company’s policies and procedures, and their legal obligations to provide a duty of care, by failing to ensure that human resources personnel were involved with her grievances, to ensure that she was being treated fairly, appropriately and in a dignified manner, to ensure that there was no risk to her health and safety, to allow her the opportunity to provide evidence which contradicted the allegations in the reprimands and warnings, to investigate her defence to the allegations made against her prior to issuing a further reprimand or warning, and to investigate properly the grievances made by her following the reprimands and warnings which had been administered. She alleges that Ms Franklin did not undertake an unbiased investigation or assign another person to do so, did not refer the applicant’s grievances to an independent panel, and did not keep each grievance confidential.
45 The applicant alleges that none of the respondents acted when matters arose which ought to have alerted each of them to the fact that the others of them were not following company policies and procedures in all their dealings with the applicant. She alleges that each of the respondents failed to act when they became aware that the applicant was becoming, and/or was, ill, and authorised the administration of further reprimands and warnings to her after she had raised a grievance.
46 The applicant alleges that she was continuously in distress in that her grievances were not being taken seriously, “nor accorded appropriate address”. She says that each respondent was encouraged by the company and each other respondent to continue breaching and/or failing to follow the company’s policies and procedures, and not to observe their duty of care, in their dealings with the applicant.
47 The applicant alleges that, in respects variously linked to her allegations against the respondents separately, they all fundamentally breached her contract of employment and the company’s policies, procedures and legal obligation terms, and acted with a reckless indifference to the harm this was likely to cause, and did cause. The applicant alleges that the respondents thereby engaged in misleading, deceptive and unconscionable conduct in contravention of ss 51AA, 51AB, 52 and 53B of the TP Act and ss 18 and 153 of the ACL, and/or engaged in negligent conduct, and breached their duty of care, including bullying, “in contravention within the meaning of the Act and the Contract of Employment.”
48 The applicant refers to the matter referred to in para 6 above, and alleges that the company was not an “Employer of Choice”. She alleges that there was “an incredibly large turnover of staff”, in relation to which many examples are given. She alleges that the company did not follow, or ensure that the other respondents followed, its policies, procedures, public declarations and legal obligations. She alleges that the company and Ms Franklin did not hire a human resources staff member, nor have anyone trained in human resources, until 2010. She alleges that the matters referred to in this paragraph caused her severe harm and detriment, including catastrophic damage to her personal and professional reputation and her health. She alleges that, by reason of the matters referred to in this paragraph, the respondents fundamentally breached her contract of employment and the company’s policies, procedures and legal obligation terms, and acted with a reckless indifference to the harm this was likely to cause, and did cause. The applicant alleges that the respondents thereby engaged in misleading, deceptive and unconscionable conduct in contravention of ss 51AA, 51AB, 52 and 53B of the TP Act and ss 18 and 153 of the ACL, and/or engaged in negligent conduct, and breached their duty of care “in contravention within the meaning of the Act and the Contract of Employment.”
49 The applicant alleges that, by reason of the warnings and reprimands that were administered to her, the company and Ms Franklin, Mr Kadlecik, Mr White and Mr Simcocks applied and used defamatory statements and allegations against her, which in their natural and ordinary meaning would be understood to mean that the applicant was not performing in relation to her own sales figures and those of her State, that she was a bully, that she was a poor manager, that she was incapable of performing her duties and functions of a manager, that she was not fit to be a manager, that she should not have been employed as a manager and that she was not a competent employee. She provides details of the making and dissemination of these statements and allegations.
50 The applicant alleges that the respondents conducted themselves in such a manner as to destroy or seriously to damage the reputation of the applicant through unfounded, undignified and inflammatory false accusatory statements, and “falsehood via orchestrated reprimands and verbal and written warnings” which “besmirched and smeared the character of the applicant”. She alleges that she attempted to address these matters, and raised grievances on various occasions, but her concerns were not dealt with by the respondents.
51 The applicant alleges as follows:
As a result of the failure to rectify the falsehood and defamatory statements when approached, which ought to have therefore been corrected, the wrongful statements, without any justification by law, imputed on the character of the applicant’s personal and professional reputation and were distributed to her fellow employees nationally, including to that of her own team, and also to the general public and within the cosmetic industry, in which she is trained, resulting in further harm to the [a]pplicant, including injury and now ensuring in the very least, if and when the [a]pplicant recovers from her injury, she is certainly now unemployable in future, and the damage to her reputation was foreseeable.
52 The applicant alleges that, by reason of the matters referred to in paras 49-51 above, the respondents other than Mr Scotti engaged in the making of defamatory statements in contravention of ss 6 and 46(2)(c) of the Defamation Act 2005 (Vic).
53 The applicant alleges that, in 2007, she was diagnosed with acute and chronic adjustment disorder, including major depression. She alleges that she was suicidal in 2010. She alleges that it was not until October 2012 that the company’s insurer acknowledged liability for her injury. She alleges that she has since been diagnosed with telogen effluvium which, according to her specialist, is likely to have been significantly contributed to by the conduct of the respondents.
54 The applicant then makes what appear to be summary allegations, grouped according to the causes of action on which she relies.
55 With reference to her contract of employment, the applicant alleges that the respondents participated in misleading, deceptive and unconscionable conduct.
56 With reference to the TP Act, the applicant alleges contraventions of ss 51AA, 51AB, 52 and 53B thereof. With reference to the ACL, the applicant alleges contraventions of ss 18 and 153 thereof.
57 With reference to her allegations of breaches of a duty of care, the applicant alleges that each of the respondents “has made contraventions within the meaning of the Act and the Contract of Employment.”
58 With reference to the DD Act, the applicant alleges that the company and Ms Franklin contravened ss 5, 6, 10, 11, 15(2)(c), 21A, 21B and 42 thereof.
59 With reference to the OHS Act, the applicant alleges that the company and Ms Franklin contravened ss 20, 21(1), 22(1)(a) and (b), 32 and 76 thereof.
60 With reference to the LSL Act, the applicant alleges that the company and Ms Franklin contravened s 58 thereof.
61 With reference to the Defamation Act, the applicant alleges that the company, Ms Franklin, Mr Kadlecik, Mr White and Mr Simcocks contravened ss 6 and 46(2)(c) thereof.
62 The applicant alleges that, by reason of the wrongful conduct alleged in the Further Amended Statement of Claim, she has suffered, and continues to suffer, loss and damage, namely, distress, offence, humiliation, and anxiety, loss of income, bonuses and other benefits as an employee of the company, loss of opportunity for promotion and advancement, damage to her reputation and, finally, “she has an injury”.
63 Save in respect of an overarching submission that the Further Amended Statement of Claim constitutes an abuse of process (to which I shall return in due course), the respondents’ written submissions in support of their Interlocutory Application were organised by reference to the various causes of action upon which the applicant’s case is based. I propose to address the matters raised in those submissions accordingly. I shall do so first in relation to points which attack the viability of the causes of action on which the applicant relies and, having put to one side claims which cannot be maintained at all, consider then the sufficiency of the Further Amended Statement of Claim as a pleading.
64 The first main group of allegations made by the applicant relates to the warnings and reprimands which the company administered to her from September 2005 to January 2007. Her complaints revolve around what are said to have been the respondents’ shortcomings in the processes leading to, and constituting, those warnings and reprimands. The matters complained of are said to be actionable under her contract of employment, under the TPA, under the company’s common law duty of care to provide a safe workplace and, I think, under the Defamation Act. The consequences are said to have been the psychiatric injury which the applicant suffered – that which was ultimately accepted for WorkCover purposes and which became the subject of the applicant’s doctor’s report of 15 December 2006 – the humiliation occasioned by the warnings and reprimands, and particularly the instruction to arrange for the applicant to undertake a leadership course, and distress and stress.
65 The second main group of allegations made by the applicant relates to the termination of her employment in March 2011. Here her complaints revolve around the timing and process of, and the reasons for, the decision to terminate. The matters complained of are said to be actionable under her contract of employment, under the TPA and the ACL, under the company’s common law duty of care, under the DD Act, under the OHS Act and under the LSL Act. Save for the loss of her employment as such, the applicant does not, at least clearly, set out what are alleged to have been the consequences of the termination.
66 The third main group of allegations made by the applicant relates to the many grievances which she raised, both when she was actively working in the company’s service and during the period subsequent to October 2006 when she was absent from the workplace. The matters complained of are said to be actionable under her contract of employment, under the TPA and the ACL, and under the company’s common law duty of care. The consequences are said to have been, essentially, the same as those alleged in relation to the first group of allegations.
67 The respondents’ submissions dealt first with the applicant’s breach of contract claims. It was submitted that the viability of those claims was compromised by the operation of the Limitation of Actions Act 1958 (Vic) (“the Limitations Act”), as made applicable by s 79 of the Judiciary Act 1903 (Cth). The relevant limitation period is three years to the extent to which the applicant seeks damages in respect of personal injuries (Limitations Act, s 5(1AA)), and otherwise six years (Limitations Act, s 5(1)(a)). As to the former category of claim, s 5(1A) limits the applicant to three years from the date on which she first knew that she suffered from the injuries alleged and that those injuries were caused by the act or omission of the respondents.
68 To the extent that the applicant alleges that the acts and omissions of the respondents during the course of her employment caused her to suffer psychiatric injuries, on her own allegations she first knew that she had suffered those injuries by December 2006 (see para 14 above) or 2007 at the latest (see para 53 above). Whatever she may have learnt from her doctor in December 2010 (see para 21 above), that was not, on her allegations, when she first knew of the injuries. Given the nature of the applicant’s allegations, it could hardly be denied that she knew also – if it were the fact – that the injuries were caused by the respondents’ acts or omissions. To the extent that the applicant’s contract claims are for damages in respect of personal injury, those claims are, in the circumstances, statute-barred. That does not apply, of course, to the applicant’s allegation that she suffered the injury of telogen effluvium of which, according to the Further Amended Statement of Claim, the applicant became aware only some time after 21 September 2009.
69 Otherwise, the applicant’s case in contract is limited to causes of action which accrued after 21 September 2006. In the area of contract, the cause of action accrues when the contract is breached, not when damage is suffered: Handford, Limitation of Actions – The Laws of Australia, 3rd ed, 2012, p 98.
70 From this baseline, the applicant’s contractual damages case must be limited to the pecuniary losses she has suffered, and to the non-pecuniary losses associated with telogen effluvium. Damages for distress, anguish, humiliation and the like are not available: Baltic Shipping Co v Dillon (1993) 176 CLR 344, 360-361. Taking the most favourable view of the Further Amended Statement of Claim, it may be that the applicant alleges that the conduct of the respondents after 21 September 2009 was responsible for her absence from work, and for the consequential loss of income (ie net of the WorkCover payments which she received), including bonuses or the equivalent. But, as alleged, that absence arose from her injury, which means, of course, that nothing before 21 September 2009 may be taken into account.
71 However, when the applicant’s case in contract is held up to the light, it can only be the allegations relevant to her contraction of telogen effluvium, and to the termination of her employment in March 2011, at most, that have any viable existence after application of the provisions of the Limitations Act.
72 But are those allegations themselves viable? In relation to the termination of the applicant’s employment, I refer to the summary set out in para 6 of what, according to the Further Amended Statement of Claim, were the relevant terms of her contract. If I may describe the tenor of the applicant’s allegations in this area of the case, it is that her contract contained, including by incorporation and by operation of law, terms which imposed various procedural and process obligations on the company. The setting in which each of these terms spoke was that of an ongoing employment relationship. They dealt, in other words, with what the company was obliged to do during the currency of the applicant’s employment. So far as I can see, no allegation is made as to any preconditions for, or any requirements of, the termination of the applicant’s employment by the company. In the Further Amended Statement of Claim, I cannot find any allegation of a term of the applicant’s contract of employment that would have made the termination of her employment a breach of contract.
73 In a number of areas, the applicant makes factual allegations as to events which occurred during the period when she was performing work in the service of the company, and follows with an allegation that, “by reason of” the matters so alleged, the respondents (or one or more of them) “fundamentally breached the contract of employment” (and other things). But it is nowhere alleged, and, in the light of the applicant’s allegations as to the termination of her employment in March 2011, it is obvious that it is not the applicant’s case, that this breach was repudiatory, and that she accepted the company’s repudiation.
74 The clearest aspect of what is generally an unsatisfactory pleading is the articulation of the applicant’s case as to why the termination of her employment was wrongful: she makes it tolerably clear that, because the termination was on account of her indisposition, it was in contravention of the DD Act. I have referred to the relevant allegations in para 25 above. In this aspect of the Further Amended Statement of Claim, no reliance is placed on any particular term of the contract of employment.
75 In the circumstances, and for the above reasons, I have reached the conclusion that the applicant’s case in contract with reference to the termination of her employment in March 2011, as pleaded, is no more than a chimera, and does not reflect any contractual point of substance which the applicant has against the company.
76 The respondents next point out that it is apparent from the Further Amended Statement of Claim that the applicant was paid compensation under the Accident Compensation Act 1985 (Vic) (“the Compensation Act”). By s 134AB(1) of that Act, a worker entitled to compensation “in respect of an injury arising out of or in the course of, or due to the nature of, employment” shall not recover damages in respect of the injury unless (amongst other presently irrelevant exceptions) it was a “serious injury” as defined in subs (37). Furthermore, by subs (3), a worker may not bring proceedings for damages in respect of the injury unless there have been determinations, or the worker has made an election, of the kind there referred to. This is not the place to investigate how the applicant might have brought herself within these exceptions, as the Further Amended Statement of Claim is devoid of any allegation of facts that would permit the bringing of this proceeding in the face of s 134AB of the Compensation Act. By the operation of s 79 of the Judiciary Act, s 134AB of the Compensation Act stands in the way of the applicant’s claims, including contract claims, for damages in respect of the injury or injuries, including telogen effluvium, which she alleges she sustained while in the employ of the company, which arose out of that employment or which were due to the nature of that employment.
77 The respondents’ submissions dealt next with the applicant’s claims under the TP Act and the ACL. Aside from those which related to the termination of her employment in March 2011, all of the allegations made by the applicant in this area of the case related to conduct by the respondents before the commencement of the ACL. The relevant proscriptions were, therefore, to be found in the TP Act. By the operation of item 6(1) of Sched 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), the TP Act continues to apply to these claims.
78 Under s 87F of the TP Act, personal injury damages may not be awarded if the proceeding was commenced more than three years after the “date of discoverability”, a term defined in s 87G(1) as the date upon which the applicant knew or ought to have known that her injury had occurred, was attributable to a contravention of the TP Act and was significant enough to justify bringing an action. Relevantly to the present case, by s 87D “personal injury damages” are damages or compensation for loss or damage that is, or results from, personal injury to a person. By s 87G(2), the applicant ought to have known a fact if she would have ascertained the fact had she taken all reasonable steps to ascertain the fact. To the extent that the allegations in the Further Amended Statement of Claim relate to personal injury of the applicant, I would hold that each of the requirements to constitute a date of discoverability existed before September 2009. In these respects, the applicant’s claims, alleging both pecuniary and non-pecuniary loss, are statute-barred.
79 Otherwise – that is, in relation to damages claims arising other than in the context of an alleged personal injury – the limitation period under s 82(2) of the TP Act is six years from the accrual of the cause of action. Having suffered loss or damage is a necessary ingredient of such a cause of action: any cause of action which the applicant had under s 82, therefore, accrued when she suffered loss or damage. Aside from personal injury, it is not altogether clear from the Further Amended Statement of Claim which damage is alleged to have been suffered as a result of what are said to be the respondents’ contraventions of the many substantive provisions of the TP Act relied on. Favourably for the applicant, I am prepared to perceive in her proceeding an allegation that her reputation was injured as a result of these contraventions. In point of timing, this injury would have occurred at, or immediately after, the contraventions themselves. The applicant would therefore, be practically limited to contraventions of the TP occurring on or after 21 September 2006.
80 The respondents submitted that the availability of an action in damages for contravention of the TP Act was subject to s 134AB of the Compensation Act. That submission was not developed, and I am not disposed to accept it. To the extent that a cause of action is available under a specific federal statutory provision, I cannot see how the law of a State can produce the result that the applicant cannot maintain the action, or recover damages in accordance with the provision.
81 The respondents’ submissions dealt next with the applicant’s claims in negligence. Here the Limitations Act and the Compensation Act operate in the same way as they do in the area of contract. I refer to my reasons in paras 67-73 above.
82 The respondents’ submissions dealt next with the applicant’s claims under the OHS Act. It was submitted that the applicant had no standing to bring a prosecution for an offence under that Act: see s 130 thereof. That submission must be accepted, but it is irrelevant to the applicant’s allegation that there had been, on the facts of the case, breaches of statutory duty which entitled her to sue for damages. To that extent, the Limitations Act and the Compensation Act again operate in the same way as they do in the area of contract. I refer to my reasons in paras 67-73 above.
83 The respondents’ submissions dealt next with the applicant’s claims under the Defamation Act. In this area of the case, the applicant’s claims relate to alleged publications more than one year before the commencement of this proceeding. I must, therefore, accept the respondents’ submission that, by the operation of s 5(1AAA) of the Limitations Act, the relevant claims are statute-barred.
84 The respondents’ submissions dealt next with the applicant’s claims for unpaid maternity leave. As noted above, this claim was framed as a failure to pay an amount equivalent to what the applicant would have earned as salary had she been absent from work on account of her maternity, the failure being alleged to have occurred at the point of the termination of her employment. The applicant’s maternity occurred while she was on leave for other reasons (her indisposition) and, as I understand it, in receipt of WorkCover payments. The respondents’ point is that the claim, which is based on the company’s policy, could not succeed because the policy provided for a “maternity payment” to be made only upon the return to work of the employee concerned. The applicant never returned to work. To make good their contention, the respondents relied on their solicitor’s affidavit to which was exhibited a copy of the relevant policy. If what appears there provides the contractual foundation for the applicant’s claim, I can understand that the respondents would regard themselves as well-placed to resist it. But the present application does not rely on s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). The question, therefore, is not whether the applicant’s claims have a reasonable prospect of success, but whether the Further Amended Statement of Claim relevantly discloses a reasonable cause of action. Pointing to facts, not alleged in or apparent from the Further Amended Statement of Claim, that would undermine the applicant’s claim does not require that question to be answered in the negative.
85 The respondents’ submissions dealt next with the applicant’s claims under the LSL Act. It was said that, pursuant to s 160 of that Act, recovery of money owed under s 58 had to be sued for in the Industrial Division of the Magistrates’ Court of Victoria. That submission must be accepted: see Houston v Dewi Thomas Pty Ltd [1967] VR 300, 305.
86 In many areas of the Further Amended Statement of Claim, the applicant has made allegations of wrongdoing against some or all of the individual respondents. It was submitted on behalf of them that such allegations are, of their nature, misconceived and unsustainable. I accept that submission insofar as the applicant’s allegations are based on contract, including the unpaid maternity leave claim and the wrongful dismissal claim, and arise under the LSL Act.
87 In the light of my reasons to date, what remains of the applicant’s causes of action? The effect of s 134AB of the Compensation Act is that the applicant is out of court in relation to her causes of action in contract, in negligence and under the OHS Act to the extent that she seeks damages in respect of an injury arising out of or in the course of, or due to the nature of, her employment. As I would understand the allegations made in the Further Amended Statement of Claim, this is terminal for the applicant’s claims in negligence and under the OHS Act. In contract, the applicant still has her claims to the extent that they are based on the company’s alleged failure to pay her maternity leave entitlement.
88 The position is much the same under the TP Act, although for slightly different reasons. To the extent that the applicant’s claims are based on an injury, they are statute-barred. Otherwise, and subject to the limitation period referred to in para 79 above, the claims remain alive.
89 To the extent that the applicant’s case relies on the DD Act, that case remains alive. It does, however, relate only to the termination of her employment.
90 I turn next to the respondents’ objections to the Further Amended Statement of Claim as a pleading. They commence with a submission that the pleading amounts to an abuse of process, at least in large measure.
91 On 29 October 2008, the applicant commenced a proceeding in VCAT. All of the present respondents, save for Mr Scotti, were respondents to that proceeding. The applicant alleged that those respondents had, in contravention of the Equal Opportunity Act 1995 (Vic) (“the EO Act”), discriminated against her by reason of her sex, her impairment and her pregnancy. She also alleged sexual harassment and victimisation. At the hearing, the applicant was represented by counsel.
92 In its decision published on 29 June 2010, VCAT outlined the nature of the case then being run by the applicant as follows (Finch v The Heat Group Pty Ltd [2010] VCAT 802 at [31]):
Doing as best I can to summarise the facts on which she seeks to rely, her case appears be as follows;
1. First she says she was directly discriminated against by reason of her sex by the Respondents by –
(i) requiring her to do extra work than males were required to perform, thus causing her detriment because she had less time to attend to sales;
(ii) making an unjustified allegation against her of cheating at the 2005 sales conference;
(iii) not allowing her to share in favours given to men, such as the giving of tote bags and gift packs in a Covergirl and Foodworks promotion;
(iv) requiring her to demonstrate the Goldmine computer system when males were not required to do so, thus causing her detriment because she had less time to attend to sales;
(v) allocating territories of choice to males but refusing to allocate to her the territory she chose;
(vi) making a false allegation that she stole Myer vouchers when such an allegation would not have been made against males;
(vii) requiring her to orchestrate the giving of a gift to her male superior;
(viii) falsifying the company’s figures to favour males over females;
(ix) unjustifiably giving her an oral performance warning on 16 June 2006;
(x) unjustifiably giving her a further written warning on 2 July 2006;
(xi) unjustifiably giving her a second oral performance warning on 22 September 2006;
(xii) unjustifiably giving her a second written warning on 4 January 2007.
2. In addition Finch claims that she was discriminated against once the company ascertained she was pregnant. She says this discrimination is constituted by –
(i) the actions of White in taking over her role and excluding her from decision-making whilst pregnant;
(ii) the company’s failure to announce Finch’s pregnancy;
(iii) the company’s failure to pay maternity leave;
(iv) requiring Finch to attend a disciplinary meeting whilst pregnant;
(v) a comment by Gillian Franklin that she should not think about getting pregnant.
3. Further she says she was discriminated against because she became impaired. She says this impairment discrimination is constituted by –
(i) requiring her to attend a disciplinary meeting whilst ill;
(ii) requiring her to answer work queries whilst ill;
(iii) the meeting with Scotti on 16 December 2006;
(iv) the company failing or refusing to pay WorkCover benefits to her;
(v) the letter to all staff from the company dated 4 January 2007.
4. Finally she says she was victimised. She says this victimisation is constituted by –
(i) the company refusing to take her complaints seriously or utilising a grievance procedure in relation to them;
(ii) the meeting with Scotti on 16 December 2006;
(iii) the company refusing to pay maternity leave benefits to her;
(iv) the company failing or refusing to pay WorkCover benefits to her;
(v) the sending of a warning letter to her on 4 January 2007;
(vi) the sending of an email to all staff from the company dated July 2007.
5. In addition to these claims of discrimination and victimisation, Finch says that she was sexually harassed by the third Respondent, Peter Kadlecik, and another employee, Darren Scotti.
93 The applicant’s case in VCAT occupied 21 sitting days. There were 20 witnesses. The applicant herself was under cross-examination for eight days. In its decision of 29 June 2010, VCAT dismissed all of the applicant’s claims. Subsequent appellate procedures by her in relation to that decision were fruitless.
94 In a schedule to their written outline on the present Interlocutory Application, the respondents compared the allegations now made by the applicant with the complaints which were the subject of her case in VCAT, identified by reference to the numbered paragraphs in the VCAT decision which dealt with them. With respect to what are now said to be the respondents’ wrongdoings during the currency of the applicant’s employment by the company, there is a very substantial degree of overlap. Broadly, that covers what I have described as the first and third areas in which the applicant makes allegations against the respondents, leaving only the second, which relates to the termination of her employment.
95 It is true that the applicant’s case in VCAT relied only on the EO Act, whereas she relies now on the common law of negligence, on contract, on the TP Act, on the OHS Act and on the law of defamation. However, any viable cause of action that the applicant had in any of these areas was available to her when she commenced, and prosecuted, her proceeding under the EO Act. I was not addressed on the question whether VCAT had jurisdiction to adjudicate on the causes of action upon which the applicant now relies; nor, for that matter, upon the question whether there was a court that had jurisdiction to adjudicate on those causes of action as well as on the applicant’s claim under the EO Act. But, assuming, favourably for the applicant, that there was no means by which she could, contemporaneously, have relied on all those other causes of action and on the EO Act, I would nonetheless hold it to be vexatious, and in that sense an abuse of process, for her now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this court.
96 Specifically with respect to the applicant’s claim for maternity leave payment, she has now repackaged this as a breach of contract arising on the termination of her employment. But her maternity occurred in February 2007. The company’s failure to make the necessary payment was, as appears from what I have set out above, part of her complaint in VCAT. The applicant’s attempt to run that complaint again, this time on a contractual carriage, is vexatious and should not be permitted.
97 Aside from the problems to which I have referred to date, the respondents objected to the Further Amended Statement of Claim as a pleading on the ground that it was likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(1)(d). This objection is well-founded. Whether or not an underlying cause of action might be discerned, I would never allow a document such as the Further Amended Statement of Claim to stand as the factual basis of litigation in this court; nor would I require the respondents to plead to it.
98 Were I to attempt to catalogue exhaustively the shortcomings of the Further Amended Statement of Claim as a pleading, I would almost certainly fail in that endeavour. Some have been mentioned already. I shall mention a few others below.
99 As the respondents pointed out, a recurring theme is the applicant’s failure to set out her allegations conformably with the factual requirements of the causes of action on which she relies. This failure is particularly egregious in the area of the TP Act, where a pattern in the Further Amended Statement of Claim is the making of factual allegations which are unrelated to the requirements of the sections on which the applicant relies, followed by a catch-all allegation that, by reason of the factual allegations, the respondents have “engaged in misleading, deceptive and unconscionable conduct in contravention of sections 51AA, 51AB, 52 and 53B” of the TP Act.
100 Another theme is the making of allegations that have the appearance of raising very serious matters but which, on examination, are untethered to any cause of action on which the applicant relies. A typical example is the oft-repeated allegation that the respondents, or some of them, “engaged in negligent conduct and breached [its/the] duty of care including bullying, in contravention within the meaning of the Act and the Contract of Employment”. The applicant does rely on the company’s policies as setting up a contractual prohibition upon “bullying”, but “the Act” is not a term of art under the Further Amended Statement of Claim. There is, so far as I can see, no allegation as to the existence of any legislative or other prohibition on bullying. Another example is the repeated allegation that the applicant raised grievances with the company: these were not said to be the doings, much less the wrongful doings, of the company, and how they contributed to any cause of action the applicant claimed to have is unclear.
101 As the respondents also pointed out, the Further Amended Statement of Claim seeks to make out a case in negligence, but no attention has been given to the requirements of the Wrongs Act 1958 (Vic). The result, according to the respondents, is that the Further Amended Statement of Claim fails to disclose a cause of action in negligence. That submission should be accepted.
102 As a general observation, I would say that the Further Amended Statement of Claim looks like the doings of a pleader who made one list of every conceivable irritation that the applicant had with the respondents, and a second list of every conceivable cause of action that might, even theoretically, be available, and made a tossed salad of the two lists. The result, as I say, is a document which is likely to cause prejudice, embarrassment and delay. Further, and importantly, to allow the Further Amended Statement of Claim to stand would turn pleadings – intended to provide a clear yet compendious identification of the factual issues by reference to which the case will proceed – into an instrument of oppression for the respondents and confusion for the court.
103 I am bound to add that the shortcomings of the Further Amended Statement of Claim are, self-evidently, more than would be observed in a pleading attempted by a self-represented litigant with no knowledge of the law. If anything, the Further Amended Statement of Claim betrays a superficial appreciation of some legal principles with the potential to provide causes of action but, at the same time, a wholesale failure to appreciate the difference between the theoretical availability of such principles and the responsible, proportioned, application of them to the facts of a particular case. From my vantage point as docket Judge, I am aware that the applicant has, over a long period, been occasionally, albeit briefly, represented by practitioners in both branches of the profession. But, for one reason or another, her relationships with these professionals have always foundered. The Further Amended Statement of Claim does not carry the signature of any such professional. I am sure that none would have wanted to have been associated with it.
104 The respondents’ case that the Further Amended Statement of Claim should be struck out is a very obvious one. The more difficult question is whether the applicant should, and if so the extent to which she should, be entitled to replead. The respondents submitted that she should not. They pointed out that this was the applicant’s third attempt at a pleading. The first, which accompanied the Originating Application, occupied 50 pages and contained 397 paragraphs of allegations. At a directions hearing on 8 March 2013, counsel who (briefly) represented the applicant accepted that it could not be maintained, substantially on the ground that it “purport[ed] to re-agitate or [sought] to re-agitate matters that [were] clearly the subject of adverse findings by VCAT”. The second, filed with the Amended Originating Application on 9 April 2013, occupied 92 pages and contained 650 paragraphs. The respondents’ submission was, in effect, that the court could have no confidence that the self-evident problems with the Further Amended Statement of Claim would be overcome if the applicant were given one further opportunity to formulate her allegations in a form that would provide a satisfactory foundation for the prosecution of her complaints in court.
105 The respondents’ submission is a very attractive one. However, it must be assessed against the reality that, if I were to permit the applicant to replead, it would not relate to those aspects of her case that are objectionable for reasons other than the form of her pleading. I have referred to them above. Once those aspects are removed, the applicant is left with a complaint under the DD Act that her employment was terminated on the ground of her disability. That is not a complaint which she could have made, in any court or tribunal, at any time prior to her dismissal, an event which postdated the final outcome in VCAT. So far as appears from the Further Amended Statement of Claim itself, this is a complaint which the applicant is entitled to prosecute.
106 As so limited, the applicant’s case should be a short and uncomplicated one. That prospect has, on balance, inclined me to give the applicant the opportunity to replead her case to this limited extent. In other respects, I propose to dismiss the proceeding.
SECURITY FOR COSTS
107 That brings me to the respondents’ application for security for costs.
108 Notwithstanding some differences in emphases apparent in recent judgments of single members of the court, in my opinion the better view is that, in the absence of some additional factor, a natural person should not be cut out from prosecuting a genuine claim on the ground of his or her impecuniosity. I discussed the foundation for this view in Goodman v Thomas Moloney & Partners Pty Ltd trading as Charter Keck Cramer [2010] FCA 1264 at [15]-[21], and more recent authorities have not persuaded me to depart from that approach.
109 In the present case, there are two additional factors which strengthen the respondents’ claim for security. The first is that they have been obliged to deal with three iterations of the applicant’s pleading. The most recent, the Further Amended Statement of Claim dealt with above, has been held to be vexatious in substantial respects. It was an improvement on the first two pleadings for which the applicant was responsible. It needs hardly be said that the respondents should not have to tolerate litigation with features such as these. Neither should the processes of the court be used in this way.
110 The second factor is related to the first. In the VCAT case to which I referred, and in the various appellate proceedings which the applicant instituted consequent upon the outcome of that case, costs orders were made against her. The costs of the VCAT case as such have been taxed, and amount to $180,000.00. That sum remains unpaid. The applicant must, therefore, be seen as a litigant who prosecuted, and lost, a substantial case, who did not pay the costs of that case or of appeals instituted by her in respect of it, and who then sought to relitigate many of the issues upon which she was previously unsuccessful. Although the result of my judgment today is that the applicant’s attempt to relitigate those issues will no longer be a part of this proceeding, the history of the matter provides real cause to doubt whether the applicant would readily comply with any costs order made in the respondents’ favour. The purpose of an order for security is to provide a fund to protect a presumptively successful respondent against the prospect that its costs will not be paid. The need for the creation of such a fund in the circumstances of the present case is, in my view, something which scarcely needs emphasising.
111 As against those considerations, the case has the unusual feature that the applicant’s financial circumstances do not speak clearly in favour of making an order for security. But neither do they speak the other way. On the evidence known to the respondents, the applicant is unemployed. There is no evidence as to the employment status of her husband. Either in her own right or jointly with him, the applicant owns three properties in suburban Melbourne, including their residence. Each is subject to a mortgage. There is no evidence of the net income, if any, which is yielded by the two non-residential properties. As mentioned above, it is known to the court that the applicant has engaged professional advisers in connection with this case, from which I would infer that she is not without the means to conduct litigation in the conventional way.
112 My conclusion that the respondents need an order for security to protect them from the prospect that, if they succeed, their costs will remain unpaid depends not on the proven impecuniosity of the applicant but on her record of intransigence in the payment of costs ordered against her on previous occasions. At the same time, I do not find that an order for security, in a sum which reflects the usual conservative approach taken by the court in such matters, would stultify the applicant’s litigation.
113 That brings me to the quantum of security which the respondents seek. In his affidavit in support of their application, their solicitor estimates that the respondents’ party and party costs of the proceeding will be within the range of $190,000-$210,000. But that was based on the assumption that the respondents would be obliged to conduct a case based on the Further Amended Statement of Claim as it stands, and that the trial, like that in VCAT, would occupy 20 hearing days. That will not be the situation. Confined to the applicant’s case under the DD Act, I doubt that the trial would occupy more than three days. The respondents’ costs to date have, of course, been inflated by the wide range of matters upon which the applicant originally sought to proceed. But clearly the estimate which they made of their party and party costs should prove to be well in excess of reality.
114 Against the estimate to which I have referred, the respondents’ present claim is for security in the sum of $50,000 only. That claim represented, I would have to say, a very conservative approach, but, as I understand it, the respondents’ application was not to be understood as, necessarily, being the only one they would make.
115 Taking into account all of the circumstances to which I have referred, I consider that the respondents’ application should be granted, and that it would be just to require the applicant to provide security in the sum of $25,000.
DISPOSITION OF THE APPLICATION
116 I propose to order that the Further Amended Statement of Claim be struck out, that the applicant have leave to replead insofar as she alleges that the termination of her employment on 11 March 2011 was done in contravention of the DD Act. I shall require her to file and serve a Further Amended Originating Application that reflects the now limited nature of her case. In other respects, the proceeding will be dismissed.
117 I shall require the provision of security as dealt with above, and order that the proceeding be dismissed if security is not provided.
118 In their Interlocutory Application of 28 November 2014, the respondents also sought an order that the applicant pay their costs thrown away by reason of her abandonment of the Amended Statement of Claim and its replacement by the Further Amended Statement of Claim. At the hearing of so much of the application as related to the matters already dealt with in these reasons, counsel for the respondents made his clients’ submissions in support of such a costs order. The applicant, however, was not prepared to respond to those submissions. In the order which I made on 11 November 2015 fixing the respondents’ Interlocutory Application for 14 December 2015, there was no reference to this aspect of the application. In the circumstances, I propose to give the applicant 21 days to file and serve a written response to the respondents’ application for costs, and the matter will be dealt with on the papers.
119 There is another matter. Despite having been in the lists of the court for nearly three and a half years, this proceeding has not yet commenced at the substantive level. As a result of the orders which I make today, the applicant is, effectively, again at square one. Also as a result of those orders, I would estimate that the trial of the proceeding would occupy no more than about three days. The case involves the claim of a single individual against the company who previously employed her. It is, in my view, exactly the kind of proceeding for the disposition of which the Federal Circuit was established. It is in that court that the parties are likely to find a more expeditious and economical means of having their dispute resolved by adjudication. By contrast, the preoccupation of this court with cases of greater complexity would militate against the achievement of these outcomes. In short, I take the view that it is in the interests of the administration of justice, within the meaning of s 32AB(6)(d) of the Federal Court Act, that the proceeding be transferred to the Federal Circuit Court.
120 Regarding the other matters required to be considered under s 32AB(6), I note that the only relevant provision of the Rules, r 27.12(2), adds nothing to those other matters. I note that I am unaware of any proceeding in respect of an associated matter which is pending in the Federal Circuit Court. Finally, having caused a relevant inquiry to be made, I am satisfied that the resources of the Federal Circuit Court are sufficient for the hearing and determination of this proceeding.
121 Although it does not bear directly upon the matter presently under consideration, I record that, at the outset of this proceeding, I contemplated transferring it to the Federal Circuit Court. The reason I did not adopt that course was that I understood, rightly or wrongly, that the Federal Circuit Court in Melbourne was in no position to accept the transfer of a case where the estimate of the length of the trial exceeded five days. That is no longer a consideration.
122 For the above reasons, I propose to order the transfer of this proceeding to the Federal Circuit Court. I do so pursuant to s 32AB(2)(b) of the Federal Court Act. The orders which I make today will include orders of the kind contemplated by subs (7) of that section.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. |
Dated: 4 March 2016
VID 704 of 2012 | |
ADAM WHITE | |
Fifth Respondent: | JOHN SIMCOCKS |
Sixth Respondent: | DARREN SCOTTI |
