FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2017] FCA 136

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the orders made on 6 February 2017 is set aside.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    By an interlocutory application dated 29 January 2017, the applicant (“Ms Hutchinson”) sought the following orders (errors in original):

1.    The Applicant respectfully asks the court to set aside the previous orders requiring a lawyer to prepare a 'Proposed Fourth Further Amended Statement of Claim' and allow the Applicant to submit a 'Proposed Fourth Further Amended Statement of Claim' on or before 6 February 2017.

2.    Costs associated with the Applicant's fruitless dealings with both MDC Legal and FourLion Legal because of the Respondents unreasonable requests to the court.

2    The first order sought by Ms Hutchinson is directed at the orders I made on 26 October 2016, and in particular order 3 thereof (“Order 3”). Those orders were made in relation to an interlocutory application made by the respondent (“Comcare”) for the Third Further Amended Statement of Claim filed by Ms Hutchinson to be struck out and for summary judgment to be entered for Comcare. The orders that I made on 26 October 2016 were in the following terms:

1.    The applicant’s interlocutory application of 2 October 2016 is dismissed.

2.    The Third Further Amended Statement of Claim is struck out.

3.    The applicant have leave to file and serve on or before 22 December 2016 a Proposed Fourth Further Amended Statement of Claim confined to the allegations made at paragraphs 1 to 658 of the Third Further Amended Statement of Claim or some of them, conditional upon:

(i)    the proposed pleading being prepared by a lawyer within the meaning of schedule 1 of the Federal Court Rules 2011 (Cth); and,

(ii)    the lawyer who has prepared the proposed pleading certifying at the foot of the proposed pleading that the factual and legal material made available to the lawyer at the time of preparing the proposed pleading provides a proper basis for each allegation of the proposed pleading.

4.    Should the conditional leave given under Order 3 be exercised, the proceeding be listed for hearing on a date to be fixed for the purpose of determining whether leave should be given to the Applicant to file and serve the Fourth Further Amended Statement of Claim.

5.    Should the conditional leave granted under Order 3 not be exercised the applicant’s Second Further Originating Application be dismissed.

6.    The respondent’s Further Amended Interlocutory Application of 26 July 2016 is dismissed.

7.    The applicant pay the respondent’s costs thrown away by reason of the filing of the Third Further Amended Statement of Claim.

3    Without objection from the parties, Ms Hutchinson’s interlocutory application was heard and determined on the papers. On 6 February 2017 I made orders dismissing Ms Hutchinson’s interlocutory application and requiring her to pay Comcare’s costs of that application. On that date the parties were informed that I would publish reasons for my judgment in due course. These are those reasons.

4    It is necessary that I set out some of the background to Ms Hutchinson’s interlocutory application before dealing more directly with the reasons for my conclusion that the application should be dismissed.

Background

5    On 19 October 2015, Ms Huchinson commenced this proceeding in the Federal Circuit Court of Australia. By an order made on 12 November 2015 the proceeding was transferred to this Court. When the proceeding first came on for a case management hearing before me, I was asked, by consent, to make an order, which I made, that the applicant have leave to file and serve an Amended Application and an Amended Statement of Claim. That was done on the basis of Ms Hutchinson’s submission that she intended to find legal representation in order to help her re-plead her case.

6    Despite that indication, Ms Hutchinson did not obtain legal assistance. The reason for that is not known to me. There may well be good reasons why Ms Hutchinson was unable to obtain legal assistance. In any event, on 25 February 2016 an Amended Application was filed together with an Amended Statement of Claim. Without going into detail, the Amended Statement of Claim drafted by Ms Hutchinson included significant changes. The original Statement of Claim was 764 paragraphs long over some 162 pages and traversed events from 1998 through to 2010. It was directed at apparent or possible causes of action including adverse action under ss 340, 342 and 351 of the Fair Work Act 2009 (Cth) (“FW Act”) and other causes under the Occupational Health and Safety Act 1991 (Cth), the Disability Discrimination Act 1992 (Cth) and the Public Service Act 1999 (Cth).

7    The Amended Statement of Claim was shorter. A ‘clean’ version of the Amended Statement of Claim with deleted paragraphs removed occupied some 81 pages. The claims made by Ms Hutchinson appeared to be of narrower compass, based exclusively in adverse action claims under ss 340, 342 or 351 of the FW Act. However, Ms Hutchinson appears to have added three new claims of adverse action.

8    On 18 March 2016, I made an order that Ms Hutchinson file and serve a Further Amended Statement of Claim and a Further Amended Application. That order was made by consent and the application for that leave must have included some acknowledgment by Ms Hutchinson that her pleadings required further amendment.

9    On 31 March 2016, the Further Amended Application together with a Further Amended Statement of Claim were filed. The changes made between the Amended Statement of Claim and the Further Amended Statement of Claim were not tracked in a way that allowed those changes to be easily distinguished from the changes made between the Statement of Claim and the Amended Statement of Claim. It is difficult to know exactly the extent of the changes made by the Further Amended Statement of Claim, however, it appears that some paragraphs were deleted but yet other new paragraphs were inserted.

10    On 20 April 2016, a mediation of the proceeding was conducted by a Registrar of the Court. The proceeding was not settled.

11    On 26 April 2016, Comcare filed its application seeking that the Amended Statement of Claim be struck out.

12    It seems that a Second Further Amended Application and a Second Further Amended Statement of Claim were filed by Ms Hutchinson on about 3 May 2016. There is no record of leave having been granted for the filing of those documents. In any event, I presume that that document was prepared by Ms Hutchinson in response to Comcare’s strike-out application and in an attempt to address the alleged deficiencies in the Further Amended Statement of Claim pointed to by Comcare. I should note that both in correspondence in anticipation of the strike-out application and by way of affidavit made in support of the strike-out application, Comcare provided Ms Hutchinson with a comprehensive account of the alleged deficiencies in her pleading and the basis for its contention that the pleading should be struck out.

13    For the same reason as earlier discussed, it is difficult to follow the changes made between the Second Further Amended Statement of Claim and the Further Amended Statement of Claim. It appears that substantial deletions were made. It appears that some matters previously appearing in particulars were placed into substantive paragraphs. In addition some attempt was made to more clearly link the very extensive narrative contained in the document to some of the elements of the causes of action that were pleaded.

14    On 16 June 2016, I conducted a directions hearing in relation to Comcare’s strike-out application. I proposed, and the parties accepted, that the parties should engage in an informal process through which Comcare might obtain greater clarity in relation to Ms Hutchinson’s claims. Although, as I understand it, exchanges between Comcare and Ms Hutchinson occurred, including the provision of various questions and answers, at the end of the process Comcare continued to assert that it had not been put in a position where it could properly understand the nature of the case it had to meet at trial. At a further directions hearing in Comcare’s strike-out application, which I conducted on 21 July 2016, Comcare sought and received leave to amend its strike-out application to include an application for summary judgment.

15    On 28 September 2016, Comcare’s application for strike-out and summary judgment was heard. Extensive submissions were made in writing by Comcare and provided to Ms Hutchinson which outlined Comcare’s challenge to her pleading. At the hearing, Ms Hutchinson indicated that she did not intend to press the s 351 claims made in the Second Further Amended Statement of Claim and conceded that no leave to re-plead those claims should be given. She also conceded that particular paragraphs of the Second Further Amended Statement of Claim relating to her claims arising after 17 January 2014 should be struck out with no leave to re-plead. Those concessions addressed some but not all of the deficiencies which were the subject of Comcare’s challenge.

16    As I said in reasons delivered on 26 October 2016 and recorded on transcript, at the hearing of 28 September 2016 Ms Hutchinson “conceded that there were a number of [other] deficiencies in the Second Further Amended Statement of Claim”. She sought a further opportunity to re-plead and leave to file a Third Further Amended Statement of Claim. I granted that leave subject to three matters. First, I indicated to Ms Hutchinson that unless persuaded to the contrary, I considered that the further leave provided to her would be her last opportunity. Specifically, I informed Ms Hutchinson that whilst I would not make an order to that effect, I was of the view that unless proper cause was shown, the leave I was prepared to grant would be her final opportunity to re-plead her case. Second, I limited the grant of leave to exclude the claims made in the Second Further Amended Statement of Claim which Ms Hutchinson had conceded no leave to re-plead should be provided. Third, I left open Comcare’s strike-out application and its application for summary judgment.

17    On 18 October 2016, Ms Hutchinson filed a Third Further Amended Statement of Claim. Whilst it is not easy to identify the changes made between the Second and Third Further Amended Statements of Claim, what is immediately clear is that Ms Hutchinson added a substantial amount of material. The ‘clean’ version of the document expanded from 35 to 58 pages. Part of the additional material appears to include the reinsertion of narrative which had previously been deleted. Despite leave having been refused, with Ms Hutchinson’s agreement, to re-plead matters which occurred after January 2014, some of those matters were re-pleaded but were accompanied by an interlocutory application for leave to do so.

18    On 26 October 2016 I further heard Comcare’s application for strike-out and summary dismissal. On that day I made the orders set out at [2] including an order striking out the Third Further Amended Statement of Claim. In the ex tempore reasons I gave on that day, I recorded my view that the Third Further Amended Statement of Claim was an oppressive pleading primarily because of its ambiguity. I regarded the pleading as clouded by the inclusion of vast amounts of irrelevant material including many allegations which amounted to little more than speculation on a part of Ms Hutchinson. I noted as well that there were significant gaps in the pleading. Those gaps included the failure to identify the persons alleged to be the decision makers who, in relation to each of the multiple claims of adverse action alleged, were involved in taking the particular adverse action. As I noted in the reasons given, Ms Hutchinson conceded that particular deficiency and sought a further opportunity to re-plead her claims.

19    As my reasons went on to say, I was not unsympathetic to the fact that Ms Hutchinson was unrepresented. However, although access to justice is an importance consideration and unrepresented litigants ought not be foreclosed from pursuing genuine claims simply by reason of an inability to obtain legal assistance, there comes a point in every case where, after a number of attempts, a deficient pleading must be struck out and a further opportunity to re-plead refused.

20    I acknowledged that if Ms Hutchinson were able to obtain legal assistance it remained possible that at least some of the claims ambiguously made in the Third Further Amended Statement of Claim could be properly pleaded. I came to the view that on balance, Ms Hutchinson should be given a limited conditional opportunity to further re-plead her case and indicated that I would make orders to that effect. As Order 3 details, the condition was that any such proposed pleading be prepared and certified by a lawyer. My preparedness to give Ms Hutchinson conditional leave to re-plead was based on the indication given by Ms Hutchinson at the hearing that if further leave to re-plead was granted, she would engage a lawyer to prepare the pleading.

21    On 22 December 2016, on the basis of representations from Ms Hutchinson that she had found a lawyer to act for her in the proceeding but that the lawyer required more time to prepare the proposed pleading, I extended the time for compliance with Order 3 to 16 January 2017 on the condition that a Notice of Acting was filed by a lawyer acting for Ms Hutchinson on or before 5 January 2017. On 5 January 2017, a Notice of Acting was filed by Sam Hemachandra of FourLion Legal.

22    On 17 January 2017 I made an order by consent extending the time for compliance with Order 3 to 6 February 2017. On 18 January 2017 a Notice of Termination of Lawyer’s Retainer was filed by Ms Hutchinson.

Discussion

23    Ms Hutchinson’s interlocutory application sought, in effect, that Order 3 be set aside and that she be granted unconditional leave to file a Fourth Further Amended Statement of Claim on or before 6 February 2017. That application was supported by an affidavit made by Ms Hutchinson and dated 13 January 2017. In that affidavit, Ms Hutchinson deposed that she had contacted a number of law firms in an attempt to find a lawyer to act for her in the proceeding. She deposed that she was unable to pay FourLion Legal’s retainer and therefore had to terminate the services of that firm. She asserted her belief that she could cure the deficiencies in the Third Further Amended Statement of Claim because she had been advised by a lawyer what those previous deficiencies were and how to ameliorate them. She stated that she had now edited the claim down to a “modest and reasonable” 23 pages. The affidavit otherwise impugned certain conduct of Comcare which appears to be directed to the order sought that Comcare pay Ms Hutchinson’s costs.

24    Comcare opposed the orders sought by Ms Hutchinson. It did not file an affidavit in opposition but relied on previously filed affidavit material that was before the Court on the strike-out application.

25    The unconditional opportunity Ms Hutchinson seeks to re-plead her claims depends upon Order 3 being set aside. That order was entered on the day it was made. Accordingly, r 39.05 of the Federal Court Rules 2011 (Cth) applies. That rule relevantly provides that the Court may vary or set aside a judgment or order after it has been entered if it interlocutory. Order 3 was an interlocutory order and can be set aside. However as Edmonds, McKerracher and Nicholas JJ said in Professional Administration Service Centres Pty Limited v Commission of Taxation [2012] FCAFC 180, 295 ALR 52 at [53]:

… It is well-established that the discretion conferred by r 39.05 of the Federal Court Rules (formerly O 35 r 7(2)) to set aside interlocutory orders once entered should be exercised in a judicial manner and only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11]. This guideline is based on the principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be reopened for consideration and set aside: McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25]; Kullilli People #2 and Kullilli People #3 v Queensland [2007] FCA 512 at [17]

26    The only basis contended for by Ms Hutchinson in support of Order 3 being set aside was her belief that she can now cure the defects in the Third Further Statement of Claim. She further contended that providing her with unconditional leave to file a revised pleading will be of no prejudice to Comcare.

27    Ms Hutchinson’s application misunderstands the basis upon which Order 3 was made and seeks, in effect, to overturn it. The contentions made in support of her application do not justify Order 3 being overturned even if it were appropriate that the substantive merits of that order should be reconsidered on an application to set it aside. In the absence of exceptional circumstances, an order once made ought not be reconsidered and redetermined simply because it is interlocutory. If it were otherwise, there would be no finality of litigation. Whilst grounds other than that an order is interlocutory may justify it being set aside in accordance with r 39.05, those grounds are not applicable here.

28    By 26 October 2016, Ms Hutchinson had had five opportunities to properly plead her claims including two opportunities which were extended to her after Comcare had made its application to strike out her statement of claim. Despite those opportunities, the pleading remained defective, as Ms Hutchinson acknowledged.

29    As I stated in the reasons given on 26 October 2016, I considered that prior events had demonstrated that Ms Hutchinson did not have the capacity to properly plead any case she may have. Providing leave for Ms Hutchinson to re-plead her case personally lacked any utility: Nulyarimma v Thompson (1999) 96 FCR 153 at [208] (Merkel J, with whom Wilcox and Whitlam JJ relevantly agreed, citing with approval observations made by Kirby J in Thorpe v Commonwealth (No 3) [1997] HCA 21; 71 ALJR 767 at 774–775). It was only because Ms Hutchinson acknowledged that she needed legal assistance to properly plead her case that, on balance, I determined to provide her with a further conditional opportunity to re-plead. In other words, the leave granted by Order 3 was only given on the basis of the condition therein imposed and would not have been given otherwise. To set aside that order would be contrary to the basis upon which the order was made. It would provide Ms Hutchinson with relief that I had previously been persuaded not to grant. Clearly, that would be prejudicial to Comcare. The fruits of its victory would be forfeited and it would be vexed with the burden of giving consideration to a further pleading and the likelihood of a further contested hearing.

30    For those reasons I dismissed Ms Hutchinson’s interlocutory application.

31    Ms Hutchinson’s contention that Comcare should pay her costs was untenable. The only question in relation to costs is whether Ms Hutchinson should pay Comcare’s costs. Section 570(2)(b) of the FW Act is relevant. An order should not be made unless I am satisfied that Ms Hutchinson’s act in pursuing her interlocutory application was unreasonable and that as a consequence Comcare incurred costs. Comcare has made no application for its costs and I have not received submissions from the parties on that issue and in particular on the matters specified by s 570(2)(b). The order made on 6 February 2017 that Ms Hutchinson pay Comcare’s costs of the interlocutory application was made as a result of an oversight on my part and should be set aside pursuant to r 39.05(e) as it does not reflect the intention of the Court. I will make an order setting aside that order. If Comcare seeks its costs it should forward a short submission addressing s 570(2)(b). That should be done within 7 days. Any responding submission should be received within a further 7 days. I will then determine the issue on the papers.

32    I should add that in the preparation of these reasons, it has also come to my attention that order 5 of the orders made on 26 October 2016 (as amended by the order of 22 December 2016) (“Order 5”) may well have had the effect that the proceeding stood dismissed as at 16 January 2017. The order I made on 17 January 2017, extending the time for compliance with Order 3, may have been ineffectual because it was made too late and post-dated the self-executing effect of Order 5. It appears that the application for an order in the form of the order made on 17 January 2017 was faxed from Western Australia to the Court’s Victorian Registry on 16 January 2017, after that Registry had closed. The application only came to my attention on 17 January 2016. If I had realised the difficulty at the time I would have extended the time for compliance with Order 3 even if the time for compliance had passed and the self-executing order had crystallised. The Court’s power to do that is well established: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283–284 (Wilson J, with whom Brennan, Deane, Dawson and Gaudron JJ relevantly agreed); Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 at [13] (Goldberg J). In any event, had that been done, it would not have led to a different outcome. Ms Hutchinson’s failure to comply with Order 3 has resulted in her proceeding being dismissed.

Associate:        

Dated:    21 February 2017