FEDERAL COURT OF AUSTRALIA

Bellou v Victoria University [2018] FCA 1794

ORDERS

THE COURT ORDERS THAT:

1.    The application to file and serve an amended originating application and a statement of claim be dismissed.

2.    A pro bono referral be made in favour of the applicant pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), for assistance in reformulating an amended originating application and statement of claim that accords with the Court’s reasons for judgment.

3.    Any amended originating application and statement of claim be filed and served on or before 14 February 2019.

4.    The matter be listed for case management hearing on a date to be fixed in the week commencing 18 February 2019.

5.    Victoria University’s costs of the application are reserved.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant has sought leave to file and serve an amended originating application and a statement of claim in this proceeding. The applicant is self-represented in this proceeding. She commenced this proceeding on 25 September 2017 by an originating application endorsed with what was described as “Details of Claim under the Fair Work Act”. Those details comprised 16 paragraphs and expressed, if I might say so, quite clearly what the applicant’s complaint was. The respondent filed a defence to the claim on 24 November 2017. The issues between the parties have been clearly drawn since then. Mediation has been unsuccessful. The matter has been set down for trial on 17 June 2019 for an estimated duration of five days.

2    The respondent objects to leave being granted to the applicant to rely on the proposed amended pleadings. The respondent made written submissions, and the applicant was given an opportunity to reply to those submissions. I have considered all the written submissions and refer to them where appropriate.

3    For the reasons I set out below, I have decided that leave should not be granted to the applicant to rely on the proposed amended originating application and statement of claim. However, I consider the applicant should be given an opportunity to reflect on these reasons, to have the benefit of legal advice and assistance, and to file a further proposed amended originating application and statement of claim which is consistent with these reasons for judgment. The permissible amendments will be limited, and a statement of claim may bring further clarity to the proceeding if drafted with legal assistance. It is of course a matter for the applicant whether she accepts or rejects the pro bono referral, and whether she accepts or rejects the advice she is given. The Court will not make a referral against the applicant’s wishes. Ultimately she has the conduct of the proceeding, and is responsible for it.

4    The applicant filed an application with the Fair Work Commission on 21 July 2017 in relation to her complaints against the respondent. In that complaint, she alleged that the respondent had breached the general protections provisions of the Fair Work Act 2009 (Cth) by discriminating against her on the basis of her physical or mental disabilities, contrary to s 351 of the Act. She also alleged that the respondent had engaged in coercion, contrary to s 343 of the Act.

5    The allegations in the complaint to the Fair Work Commission spanned a period from approximately 2 February 2016 to 1 July 2017, which as I explain below is the same period with which the applicant’s current claim in this Court is concerned. The Fair Work Commission was unable successfully to conciliate the matter and therefore these proceedings were filed.

6    The matter has been case managed since its inception in this Court and is currently listed for trial in June 2019. Correctly, the respondent did not submit that the applicant’s proposed amendments would inevitably interfere with the current trial dates although (also correctly) it submitted that the current estimate of five days would be likely to be insufficient given the expanded nature of the applicant’s allegations. That fact is not insignificant, as the Court cannot accommodate a longer listing in 2019, before or after the current trial date.

7    As I noted above, the applicant’s current claim is based on allegations of fact which cover a period from 2 February 2016 to 1 July 2017. The facts which relate to the start of this period concern an injury suffered by the applicant at work (that is, at Victoria University), where she fell down some stairs. The factual events at the end of this period relate to the applicant’s cessation of employment with the respondent, through her position having been made redundant on 1 July 2017.

8    The contravention allegations during this period fall into two categories. First, the applicant claims that, having been off work for some considerable time as a result of her fall, when she wished to return to work the respondent did not facilitate her return to work, in part on the basis of workplace complaints she had made while absent from work.

9    The second category of complaint revolves around the applicant’s claim that she was “targeted” for redundancy by the respondent, because of her workplace injuries, and also on the basis of protected characteristics. The latter part of her complaint has emerged during case management hearings, rather than being expressed in the text of the originating application itself.

10    However, at least for the purposes of this decision, I take it as tolerably clear that Dr Bellou intends to argue that one of the bases on which she was targeted for voluntary redundancy by the respondent is one of the attributes in s 351(1) of the Fair Work Act. During case management the applicant has variously nominated, for example, her disabilities, her race, her age and her gender. I have not understood to this point the respondent to object to that relatively minor and related development in the way the applicant puts her case. Rather, as I explain below, the respondent, correctly in my opinion, objects to the expansion in the proposed statement of claim to events outside the period between 2 February 2016 and 1 July 2017.

11    Thus, to this point, the applicant’s case in this proceeding has concerned two categories of conduct: broadly, the way the respondent managed the applicant’s return to work after her workplace injury, and whether the respondent “targeted” the applicant for voluntary redundancy so that, in the applicant’s words, she “had no choice but to submit the Voluntary Redundancy form”.

12    Instead of dealing with a period of 17 months, the proposed statement of claim now spans a 14 year period; namely, the entire period of the applicant’s employment with the respondent from around June 2003 to 1 July 2017. From 16 paragraphs, on two pages, setting out reasonably clearly how the applicant’s claim was framed, the claim has now expanded to 523 paragraphs and 48 pages.

13    The claim now not only relies on contraventions of s 340 of the Fair Work Act, but now more expressly relies on an alleged contravention of s 351 of the Act on the basis of the applicant’s workplace injuries and her treatment in relation to her return to work. I pause here to note that if the amendment had been limited to this matter, I apprehend the respondent may not have objected. If the applicant were to reformulate her claim to particularise this allegation (which appears to be raised in paragraph [396] of the proposed amended claim) I would have been inclined to grant the applicant leave to rely on an amended document in that form. That is because, as I have explained above, during case management hearings the applicant has already indicated that she has intended to raise an adverse action claim relating to alleged discrimination by reason of her disabilities (being disabilities arising from her workplace injuries) in how she was treated on her return to work, such return to work being (as I understand the allegation) a workplace right. I would have considered in the circumstances it was in the interests of the administration of justice that she be allowed to develop that particular claim, given its close nexus to her two current sets of allegations.

14    However, the applicant’s new proposed claim is far more expansive than an allegation of this kind. Its narrative begins with the time of the applicant’s commencement of employment, focussing on the period from 2003 onwards, and continues up to the date the redundancy offer took effect on 1 July 2017.

15    Putting to one side those paragraphs which might be seen as re-stating the contents of her current claim (for example, paragraphs [17] and [19]), the applicant gives a general description or summary of her allegations at [15]-[16], [21], [22]-[25] of the proposed statement of claim:

15.    The Applicant alleges that the Respondent took adverse action against her because she exercised her workplace right to complain and make inquiries in relation to her employment.

16.    The Applicant alleges because the Applicant exercised her workplace right to complain and make inquiries in relation to her employment, there ensued a sustained and prolonged campaign of adverse action against the Applicant by the Respondent with detrimental impacts on the Applicant.

…

21.    The Applicant alleges that the Respondent took adverse action against her by dismissing her, altering the position of the Applicant to her detriment, injuring her in her employment, and discriminated between the Applicant and other employees of the employer.

…

22.    Between 2003 and 2017, but also during the course of her employment at Victoria University, the Applicant made a number of complaints and enquiries in relation to her employment.

23.    The Applicant alleges that the Respondent failed to address and investigate her complaints appropriately and timely.

24.    The Applicant alleges that the Respondent ignored or dismissed the Applicant’s attempts to have her complaints and serious matters raised in relation to her employment investigated.

25.    The Applicant alleges that the Respondent failed to provide her with a safe workplace, culminating in the multiple and debilitating workplace injuries suffered by the Applicant on the 2nd of February 2016.

16    After these paragraphs, a narrative commences in broadly chronological order, of the numerous events Dr Bellou alleges disclose contraventions of the Fair Work Act, or (as I set out below) provisions of Victorian legislation. It suffices to give a brief summary of that narrative, so as to illustrate the breadth of the case Dr Bellou now seeks to present.

17    The narrative begins in mid-2003 with an account of a “traumatic incident” that necessitated a complaint to the then Vice-Chancellor of Victoria University, and which Dr Bellou alleges was the start of her “career death”, because she made a complaint.

18    There are then (beginning at [30] of the proposed statement of claim) 38 paragraphs of detailed factual allegations about what are described by Dr Bellou as incidents of “dismissal, bullying, discrimination and poor management practices, as well as altering her position to her detriment by removing her from her duties”, to which she adds a series of allegations about the respondent’s failure “to investigate, address the issues and/or put a stop to the alleged unfair and/or unlawful treatment”. Many individuals are named as the perpetrators of this conduct, or as participants in it. These allegations deal with the period only of 2005-2006.

19    Another set of allegations commences at [69] of the proposed statement of claim, under the heading of “The Complaints 2006”. Again, these are allegations of being “subjected to unfair and/or unlawful treatment, including bullying and intimidation” by a number of individuals. Included in this set of allegations (and commencing at [83]) are a series of allegations about what is described as the “first termination” of Dr Bellou’s employment (ending at [110] of the proposed statement of claim, followed by a series of allegations about the “second attempt…to make the applicant redundant” (at [111]-[115]). Then follows another narrative dealing with what is described as “the continuation of breaches and adverse action by the respondent” (at [116]-[129]). A separate complaint about an attempt to remove the applicant from an ethics committee is then made. Then from [132] appears a series of allegations under the heading “Breaches of the respondent in the period 2009-2010”. This continues to [144]. From [145] are another set of alleged breaches in the period 2011-2012, which extend to [194] and are described in [145] as including “bullying, discrimination, poor management practices, coercion, redefining the Applicant’s role and removing the Applicant from her work duties, replacing the Applicant and effectively demoting her”.

20    From [195], the narrative turns to allegations concerning conduct during 2012. Continuing the theme of the document to this point, the applicant makes allegations against a range of individuals, different from those she has made allegations against to this point. The 2012 allegations proceed on a month by month basis, often with several different incidents alleged in each month. This goes through to [244] of the proposed statement of claim.

21    The period of 2013 to 2015 is the subject of the next section, from [245] to around [336]. Similar kinds of allegations are described (see [245]-[246]):

The Applicant alleges that the Respondent breached repeatedly the Fair Work Act by taking adverse action against the Applicant and by further subjecting her to discrimination, bullying, victimization, unfair and/or unlawful treatment and injuring her in her employment.

The Applicant alleges that again her employment is constantly threatened.

22    A new range of individuals are named. Month by month accounts are given, often with several alleged incidents each month.

23    Although without a new heading, the narrative for 2016 commences at around [337]. Again, a new set of individuals are the subject of allegations and a month by month description of allegedly adverse treatment is set out.

24    At [348]-[349], the alleged events of the applicant’s fall on the stairs, referred to above, are set out. Again, were these factual allegations simply added to the existing claim, there may have been no real objection from the respondent, and none of the difficulties to which I refer below would have arisen.

25    At [350] there is a heading “Breaches of the Respondent of Fair Work Act and OHS”. These allegations appear to revert in time to at least 2010 (see [356]). They include such matters as the applicant complaining about her office chair being broken (at [359]). There is an allegation (at [362]) that the respondent has contravened the Occupational Health and Safety Act 2004 (Vic) by leaving the applicant to work using a broken chair. The allegations continue about the broken chair for many more paragraphs. They move (around [366]) to complaints about needing an ergonomic work station. This is all now back in time again in 2013. It continues until [382] of the proposed statement of claim.

26    The narrative then turns to complaints about teaching hours, again going back to events in 2014. The specific complaint by the applicant appears to be that she has to teach 15.5 hours a week (see [385]). Up to [392] the narrative then describes how the applicant alleges she has been threatened that she may be forced into taking sick leave.

27    From [393] to [404], under the heading “Breaches of the Respondent of The Fair Work Act and after the Applicant’s workplace Accident of 2nd February 2016”, there is considerable overlap with the current allegations in the originating application, and indeed many of the same allegations are made, with slightly different language and emphasis.

28    From [405] to [517], there is a new series of allegations about denial of promotion and advancement. These are said to be based on breaches of s 18 of the Equal Opportunity Act 2010 (Vic). These allegations go back in time to 2009 (see [417]) and run through to February 2016. Again, they involve a number of individuals from Victoria University, against whom a range of allegations are made by Dr Bellou relating to denial of promotion, denial of research leave and denial of professional development opportunities.

Applicable principles

29    I respectfully agree with the summary given by Gleeson J in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 concerning the relevant matters the Court should consider with respect to an application for leave to amend pleadings, by reference to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. Gleeson J stated (at [127]-[128]):

127    The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 (“Cement Australia”) at [43]. Relevant matters the Court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

128    The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

30    This passage was endorsed on appeal by the Full Court: see Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 at [125].

Resolution

31    While I accept that Dr Bellou sees this proceeding as her opportunity to bring forward all her grievances against Victoria University, and the amendment in that sense is important to her, the amendment does not advance or elucidate the nature of her claim as it has been to this point, nor add to it in any reasonable or clear way. Dr Bellou’s clear desire to have the Court examine each and every aspect of her interactions with Victoria University where she feels aggrieved would result in the oppression of the respondent, forcing it into a trial that would take many, many weeks, and involve a disproportionate number of witnesses, let alone the documentary evidence likely to be involved in any such in-depth investigation.

32    In contrast, as I have noted, if Dr Bellou had sought formally to add an allegation of a contravention of s 351 by relying on an allegation of discrimination in relation to her voluntary redundancy process, I doubt Victoria University would have opposed that. The same sub-stratum of facts would have been involved, the same periods of time, more or less the same individuals and it is difficult to see what prejudice could have arisen.

33    However, instead of such a limited and reasonable amendment, Dr Bellou now seeks to draw in dozens of individuals by her new allegations. She seeks to have a trial about events which, at the time of trial, would be up to 15 years ago, and seeks to ask the Court to make findings about many events occurring more than 10 years ago. She seeks to rely on alleged contraventions of state legislation, where there is no clear jurisdiction in this Court to deal with those matters.

34    The extent of the delay in bringing these claims is also material. Dr Bellou has refrained from raising all these matters until after the mediation was unsuccessful. The matter has been set down for trial on the basis of the claims in the originating application. The costs associated with the amendment would not only be considerable in terms of the entirely different case Victoria University would have to meet (if indeed it was able to meet it, given the time period over which the claims extend and the nature of those claims), but the costs of losing the mid-2019 trial date because a much longer trial period would be required should also be considered. The proceeding would need to be adjourned until 2020.

35    Plainly, in my opinion, the prejudice to Victoria University which would flow from an amendment of this type is very considerable. The witnesses it would have to call would extend to individuals who may not have worked at the University for a very long period of time, and that is putting to one side the sheer number of people Dr Bellou seeks to draw into her narrative as individuals who have offended her, treated her badly and been involved in contraventions on the Fair Work Act, on her account.

36    The explanations offered by Dr Bellou revolve around her being self-represented, and having a number of health issues. I do not accept those explanations account for the delay, nor for the wholesale change in the nature of her case. She was able to put her claim succinctly and clearly when she issued this proceeding. She had put the same claim to the Fair Work Commission. What appears to have happened, in my opinion, is that she has become embroiled in the minutiae of her employment relationship with Victoria University after she has embarked on this proceeding and she is simply seeking to re-agitate in this forum each and every matter she considers was not dealt with to her satisfaction by the University.

37    As to Dr Bellou’s choices to date, none of the new matters she now seeks to raise were matters she chose to raise formally with the Fair Work Commission, nor matters she chose to initiate any proceedings about at the time they occurred.

38    The effects on other litigants, and on the Court’s resources in general, are relevant considerations, even if they move the Court’s consideration away from the “justice” of the individual case. The term “the interests of the administration of justice” is however amply wide enough to comprehend these broader matters. Obviously these considerations also feature in the approach set out in s 37M of the Federal Court of Australia Act 1976 (Cth). In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 the Court stated at [51]:

In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

(citations omitted)

39    I accept that Dr Bellou, being self-represented, should be afforded a reasonable opportunity to put her case and should not be placed at a disadvantage in terms of the Court’s practice and procedure because she is self-represented. Nevertheless, the Court’s obligation is to ensure a fair trial for all parties: see SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, referring to Hamod v New South Wales [2011] NSWCA 375 at [310]). There would be nothing fair to Victoria University about a trial on the plethora of allegations in the proposed statement of claim.

40    I also consider acceding to an application such as this is capable of affecting public confidence in the legal system. Victoria University is a publicly funded body. This Court is publicly funded. Dr Bellou is incurring no legal costs, yet she seeks to compel the University to expend very large sums of money in defending conduct that descends to the level of whether she received prompt and proper attention to her complaint about a broken chair. She seeks to have public funds expended on inquiries about her access to research leave when she availed herself of appeal mechanisms within the University. She must accept, in my opinion, some finality needs to be applied to her very long list of complaints.

41    Dr Bellou has regularly invoked this Court’s jurisdiction with her original claim. She might have been able to develop a more particular claim of adverse action based on s 351 in relation to the time period set out in the original application, and to allow her to do so would not be an unwarranted or inappropriate extension. To permit such an amendment is quite different to the Court acquiescing to her choice of raising dozens of separate allegations against the respondent, and many members of its staff.

42    Dr Bellou cannot expect, and the public does not expect, this Court to conduct, through public funds, what approaches a complete inquiry into the entirety of her employment with Victoria University, and most of her employment relationships during that time, especially where other mechanisms within the University have been available for such complaints, and Dr Bellou has at times used them.

43    In her written submissions in response to those of Victoria University, Dr Bellou contended:

The Applicant submits that the Respondent breached the general protections provisions of the Act, discriminated between the Applicant and other employees. This allows the Applicant to include in her application the entire course of her employment

(emphasis in original)

44    It is not correct that Dr Bellou is “allowed” to include what she likes in an amended application. It is for the Court to control what amendments a party is able to make to an application, and indeed to control the nature and scope of an original application, so as to avoid it being vexatious, oppressive, or an abuse of process.

45    The breadth of Dr Bellou’s proposed statement of claim is oppressive in the extreme in relation to Victoria University, which to this point in the proceeding has conducted itself in a patient and model way. The content of the applicant’s new claim has, I am prepared to find, clear elements of vexatiousness. The saga of the broken chair is but one example. The intemperate allegations against persons in senior positions at Victoria University, which I have not reproduced in this summary, are other examples. The oppressive and vexatious character of the proposed statement of claim would itself be sufficient to decline leave to amend. I am confirmed in that view because there is nothing in any of the new allegations made by Dr Bellou which suggest to me that any new arguable cause of action under the Fair Work Act is raised by what she has narrated.

46    I note that in its submissions the respondent accepts that some paragraphs of the proposed amended statement of claim may be related to or have a connection with the applicant’s current claim, at least to some extent. However, as the respondent submits, as currently framed many paragraphs of the proposed statement of claim make allegations well outside the period of February 2016 to July 2017, even if some of the allegations are within this period. There is, in my opinion, nothing which can be rationally salvaged from the proposed statement of claim and it is appropriate to refuse leave to the applicant to rely on it at all.

47    The application for leave to amend the originating application and to file the proposed statement of claim is refused.

48    However, taking into consideration that Dr Bellou is self-represented, and noting my observations that some limited amendments would not be outside the scope of her application as currently articulated, I propose to give Dr Bellou one further opportunity to amend her claim.

49    It is clear to me that she would benefit from some legal advice and assistance in formulating amendments likely to be accepted. She would also benefit from legal advice and assistance in understanding the Court’s reasons. I propose to make a pro bono referral to facilitate her receiving that advice and assistance. Since the trial in this matter is not until mid-2019, I consider there is time for this process to occur without it interfering with trial preparation and without needing to vacate the trial dates. Those last two matters are important considerations as there are currently no other trial dates in 2019 available in my docket for a matter of this length. Dr Bellou has already had two pro bono referrals in this proceeding. Counsel withdrew from the first referral. The second referral was for the purposes of the mediation with the respondents, which was unsuccessful. There is no guarantee any member of counsel will be found to accept the referral. However, I propose to attempt to provide Dr Bellou with one more opportunity to be given some legal advice, and to reflect upon it. What course she chooses to take after that will be entirely her own responsibility.

50    Since the amendment application was unsuccessful, I consider it is appropriate to reserve the respondent’s costs of the application.

Associate:

Dated:    20 November 2018