Federal Court of Australia

Moore v Barwon Health [2024] FCA 1387

ORDERS

THE COURT ORDERS THAT:

1.    Dr Moore is granted leave to file the Proposed Amended Originating Application in the form served on Barwon Health on 30 October 2024, save that:

(a)    leave is refused to join the proposed 7 individual respondents;

(b)    leave is refused to add paragraphs 4-10 commencing on page 6 of the Proposed Amended Originating Application; and

(c)    leave is refused to add paragraphs 11-15 commencing on page 8 of the Proposed Amended Originating Application, insofar as those paragraphs seek relief against the proposed seven individual respondents.

2.    Dr Moore is granted leave to file the Proposed Amended Statement of Claim in the form served on Barwon Health on 30 October 2024, save that:

(a)    leave is refused to add the proposed seven individual respondents; and

(b)    leave is refused to add the following paragraphs: 3, 4, 5, 6, 7, 8, 9, 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).

3.    On or before 18 December 2024, Dr Moore shall file and serve an amended originating application and an amended statement of claim in conformity with the grants of leave pursuant to Orders 1 and 2.

4.    On or before 24 March 2025, Barwon Health shall file and serve a defence to the amended statement of claim.

5.    On or before 7 April 2025, Dr Moore shall file any reply.

6.    The matter be listed for a further case management hearing on a date not before 14 April 2025.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

1    The applicant, Dr Eileen Moore, was employed by the respondent, Barwon Health, between September 2008 and December 2021. Dr Moore commenced her proceeding in this court by filing an Originating Application on 8 April 2022. Dr Moore filed her Statement of Claim in the proceeding on 11 October 2022.

2    By interlocutory application dated 31 October 2024, Dr Moore now seeks the Court’s leave to file an Amended Originating Application and Amended Statement of Claim. The amendments to those documents add a number of new causes of action under the Fair Work Act 2009 (Cth) and add seven individual respondents.

3    Barwon Health do not oppose the additional causes of action but oppose the addition of the individual respondents.

4    The individual respondents hold (or in the case of the fourth and eighth proposed respondents, held) the following positions at Barwon Health:

(a)    Head of the Department of Surgery;

(b)    Director of Surgical Services;

(c)    Director of Workforce Relations;

(d)    Chief Executive Officer;

(e)    Director of Human Resources and Industrial Relations;

(f)    General Counsel; and

(g)    Chief of People and Culture.

5    For the reasons set out below Dr Moore is granted leave to file the Proposed Amended Originating Application in the form served on Barwon Health on 31 October 2024, save that:

(a)    leave is refused to add the proposed seven individual respondents;

(b)    leave is refused to add [4]-[10] commencing on page 6 of the Proposed Amended Originating Application; and

(c)    leave is refused to add [11]-[15] commencing on page 8 of the Proposed Amended Originating Application, insofar as those paragraphs seek relief against the proposed seven individual respondents.

6    For the reasons set out below Dr Moore is granted leave to file the Proposed Amended Statement of Claim in the form served on Barwon Health on 31 October 2024, save that:

(a)    leave is refused to add the proposed seven individual respondents; and

(b)    leave is refused to add the following paragraphs: 3, 4, 5, 6, 7, 8, 9, 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).

7    The interlocutory application is otherwise dismissed with no order as to costs.

background and procedural history

8    As outlined above, Dr Moore commenced this proceeding by filing an originating application on 8 April 2022. Dr Moore served her originating application on Barwon Health on 4 August 2022. Dr Moore filed a statement of claim on 11 October 2022.

9    On 18 November 2022, Dr Moore wrote to the Court asking for advice about the procedure to follow to “apply for leave to amend an originating application” and “to apply for leave to amend the statement of claim”. That correspondence did not identify that Dr Moore intended to add the individual respondents.

10    On 8 November 2022, Barwon Health filed its defence, and on 29 November 2022, Dr Moore filed her reply. By operation of r 16.12 of the Federal Court Rules 2011 (Cth), the pleadings closed on 29 November 2022.

11    On 9 December 2022, Dr Moore sent an email to Barwon Health attaching a proposed amended statement of claim and a proposed amended originating application. Dr Moore did not add the individual respondents in those amended pleadings. On 30 January 2023, Dr Moore wrote to Barwon Health advising, amongst other things, that she “proposes to make an application to the Court to be granted leave to file” proposed amended pleadings.

12    On 24 March 2023, Barwon Health’s solicitors sent an email to Dr Moore which stated that if she intended to seek leave to amend her pleadings, she would have to make an application with the Court seeking leave to amend.

13    Before a mediation scheduled for 26 March 2024, Dr Moore wrote to Barwon Health on 22 March 2024. That letter said that Dr Moore intended to amend her pleadings, including to add individual respondents. That was the first occasion that Dr Moore advised that she intended to add individual respondents.

14    On 3 April 2024, Dr Moore served a further proposed amended originating application and a further proposed amended statement of claim, which included additional individual respondents. On 23 April 2024, Dr Moore filed an interlocutory application seeking leave to amend her originating application and statement of claim.

15    I heard that application on 20 June 2024. With the agreement of the parties, I dismissed that application and referred Dr Moore for pro-bono assistance to assist her with the preparation of a draft amended originating application and a draft amended statement of claim.

16    Pro-bono assistance was obtained by Dr Moore and a further proposed amended originating application and statement of claim was provided to Barwon Health on 6 September 2024. In those proposed pleadings, seven individual respondents were joined. Barwon Health opposed that joinder.

17    On 25 October 2024, Dr Moore notified the Court that her pro-bono counsel could no longer continue to represent her. On 1 November 2024, Dr Moore filed the interlocutory application seeking leave to file an amended originating application and statement of claim. That interlocutory application was the subject of today’s hearing. Together with that application, Dr Moore filed an affidavit which included the further Proposed Amended Statement of Claim and Proposed Amended Originating Application.

principles

18    Pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), a party must apply for leave of the Court to amend a pleading, subject to certain exceptions which are not relevant in this case. Leave to amend may be granted as a matter of discretion.

19    In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, in the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [102]–[103], their Honours referred to the need to consider the extent of any delay in applying for amendment, the costs associated with the delay, as well as any prejudice which might reasonably be assumed to follow from the amendment.

20    Further, leave to amend will not be granted where the amendment would be futile: see Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322.

21    There was no dispute about those principles.

consideration

Delay

22    Barwon Health complains of the long delay in Dr Moore’s decision to join the individual respondents. It says despite pleadings having closed in November 2022, and the Applicant foreshadowing proposed amendments on 9 December 2022 and 30 January 2023, the Applicant did not serve the previous proposed amended originating application and statement of claim until 3 April 2024, well over a year later.

23    It says further that that delay has not been adequately explained, particularly when some of the conduct of the proposed individual respondents occurred several years ago.

24    Dr Moore says that the reasons for the delay included:

(a)    That she was unable to access affordable legal assistance or legal representation,

(b)    The failure of parties to respond to the Court for further timetabling as instructed,

(c)    Her commitment in palliating a close friend’s elderly mother at home until her death, and

(d)    The failure of the respondent to provide employee records which Dr Moore sought to particularise claims, which she thought was desirable.

25    Dr Moore submits that in respect of the claims against the individual respondents, she only became aware of those complaints when she received documentation from Barwon Health in January 2024. Barwon Health responds that Dr Moore had opportunities to obtain that documentation prior to 2024. Dr Moore submits that in an email she sent to Barwon Health on 17 December 2019, she requested “a copy of [her] full employment history” and that that request should have included the documents that she received in January 2024. Dr Moore submits that her request in December 2019 was a request for her employment documents and that Barwon Health did not provide those documents.

26    That request in December 2019 was not made specifically pursuant to the Fair Work Regulations 2009 (Cth), but on 13 December 2023, Dr Moore wrote to Barwon Health formally requesting her employment records pursuant to regulation 3.42 of the Fair Work Regulations 2009 (Cth). That request was more specific than the earlier request of December 2019, and in that letter Dr Moore requested particular categories of documents relating to her employment from between 11 September 2008 and 15 December 2021. I am not satisfied Dr Moore’s request in 2019 answers the complaint of delay made by Barwon Health, where the earlier request was more general in nature than the specific request made in 2023.

27    Dr Moore says further that delay alone is an insufficient basis for refusing leave. I accept Dr Moore’s submission that delay alone is an insufficient basis to refuse leave, however, I do find that the majority of the claims against the individual respondents could have been brought sooner and I weigh that matter with the other matters below.

Delay and section 37M

28    Barwon Health further complains that the long and inadequately explained delay in seeking to join and make claims against the individuals respondents demonstrates a disregard of the overarching purpose set out in s 37M of the Federal Court Act 1976 (Cth).

29    I am concerned that the proceeding was commenced more than two years ago and the disputes over pleadings are not resolved, and no hearing dates are yet allocated. I am concerned that Dr Moore’s allegations be heard as quickly, inexpensively, and efficiently as possible.

30    Dr Moore accepts, that the joinder of the individual respondents will result in delay, together with a longer and more complex trial.

31    I accept as Barwon Health contends the joinder would likely lead to the individual respondents being separately represented which would inevitably cause delay.

32    I weigh these matters against the discretion to grant leave. It is important that Dr Moore’s claims are progressed with speed and efficiency.

Delay and utility

33    Barwon Health complains that there is little advantage to Dr Moore being able to pursue claims of accessorial liability against the individual respondents.

34    Dr Moore accepts that the principal relief sought by her in the proceeding is against Barwon Health.

35    However, Dr Moore says she should be entitled to bring her claims against the individual respondents so as to deter others in their position and so as to ensure those claims are heard together with her claims against Barwon Health.

36    I accept Barwon Health’s submission that any judgment against Barwon Health will have a deterrent effect on those in the positions of the individual respondents. That is especially so if findings are made against those respondents (whether or not they are a named respondent).

37    Whilst I understand Dr Moore’s endeavours to deter others in the position of the individual respondents I do not, in the circumstances, consider that a sufficient basis to grant leave. Further, the vindication of any claim against those individuals is ameliorated where Dr Moore accepts her principal relief will come from Barwon Health.

Delay and unfair forensic disadvantage

38    Barwon Health complains that the delay since many of the relevant events will produce an unfair forensic disadvantage to the individual respondents.

39    Dr Moore submits that such disadvantage is hypothetical. Barwon Health relies only on what it describes as a presumptive prejudice. It effectively submits that the longer the delay in commencing claims against the individual respondents the more likely it is that the matter will be decided on less evidence than was available at the time the cause of action arose: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [551] per McHugh J.

40    I accept there will be some disadvantage upon the individual respondents given the time that has passed. Although I note that the claims against the sixth and seventh respondents arose much more recently.

Adequacy of primary liability claim and accessorial liability claim

41    Barwon Health next complains about the adequacy of the pleadings as against both Barwon Health and the individual respondents. It relies upon Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580.

42    Whilst it does not oppose leave for the pleaded new claims against Barwon Health it says the deficiencies result in a pleading where the individual respondents cannot understand with precision the case brought against each of them.

43    Barwon Health exemplifies its complaint by the pleadings against the proposed fourth respondent at [32]-[34] of the Proposed Amended Statement of Claim. It says the proposed Fourth Respondent is said to be to be involved in an alleged primary contravention by Barwon Health in relation to an alleged failure to comply with a term of an enterprise agreement, in breach of s 50 of the Act. That relates to an alleged failure to cooperate to ensure that dispute-resolution processes set out in enterprise agreement clauses were carried out expeditiously by Barwon Health. It says that pleading of primary contravention is embarrassing including because it is too vague and pleads evidence and some of the allegations are also rolled up.

44    It says also that it does not set out all of the relevant elements of the contravention. It repeats that criticism in respect of:

(a)    [94(a)] and [96] of the Proposed Amended Statement of Claim which alleges the involvement of the proposed Second Respondent in contraventions of Barwon Health;

(b)    [27] and [29] of the Proposed Amended Statement of Claim which alleges the involvement of the proposed Third Respondent in contraventions of Barwon Health;

(c)    [65], [66], [68], [69], [71], [94(d)] [98], [100], [102] and [104] of the Proposed Amended Statement of Claim alleging the involvement of the proposed Fifth Respondent of Barwon Health;

(d)    [54], [60(e)], and [62] of the Proposed Amended Statement of Claim alleging the involvement of the proposed Sixth Respondent of Barwon Health;

(e)    [55], [60(e)], and [63] of the Proposed Amended Statement of Claim alleging the involvement of the proposed Seventh Respondent of Barwon Health; and

(f)    [65], [66], [68], [69], [72], [89], [94(d)], [99], [100], [102] and [105] of the Proposed Amended Statement of Claim alleging the involvement of the proposed Eighth Respondent of Barwon Health.

45    I accept, as Barwon Health does, that Barwon Health can respond to these pleadings, but I also accept that their lack of specificity, when combined with the accessorial liability pleading considered below does not adequately set out the accessorial liability claim against the individual respondents.

46    Barwon Health extracts and relies upon the accessorial liability principles as set out in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370 as cited with approval in Fair Work Ombudsman v Hu [2019] FCAFC 133 at [15] and Sabapathy v Jetstar Airways [2021] FCAFC 25 at [28].

47    The relevant paragraphs provide:

[176] … In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a [contravention]: Yorke v Lucas at 667 …

[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …

[178] The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325]

48    There is no dispute about those principles.

49    Again, Barwon Health exemplified its submission by reference to the proposed fourth respondent at [32]-[36] of the proposed amended statement of claim.

50    I accept, as contended for by Barwon Health, that those paragraphs in respect of the proposed fourth respondent do not, or do not adequately, plead the knowledge of the essential elements of the contravention and the intentional participation by the proposed individual respondent as required by the principles set out in Devine Marine. That shortcoming is repeated throughout paragraphs 29, 36, 54, 55, 60(e), 62, 63, 71, 72, 73(d), 89, 96, 97, 98, 99, 104, 105 and 107(c).

Conclusion

51    In all of those circumstances, leave to file the Proposed Amended Originating Application and Proposed Amended Statement of Claim, insofar as they propose claims against the individual respondents, is refused.

costs

52    Barwon Health seeks its costs of its Defence dated 8 November 2022; which costs it says are thrown away. It seeks those costs pursuant to s 570(2)(b) of the Act. It submits Dr Moore’s failure to plead her new claims earlier was an unreasonable act that led to those costs being thrown away.

53    Dr Moore submits that she was first represented by a person holding himself out as a lawyer, who was not a lawyer. She then unsuccessfully sought assistance from Justice Connect. She then momentarily had the assistance of pro-bono counsel. She says in those circumstances her actions were not unreasonable.

54    In those circumstances and in all the circumstances of this case I am not satisfied the conduct of Dr Moore was unreasonable for the purposes of s 570(2)(b).

Associate:

Dated:    4 December 2024