Federal Court of Australia

Larobina v Melbourne Health trading as Royal Melbourne Hospital (Joinder Application) [2025] FCA 1045

ORDERS

THE COURT ORDERS THAT:

1.    Dr Fergus Kerr be joined as the second respondent to the proceeding.

2.    The applicant have leave to file a further amended originating application in substantially the same form as annexed to the affidavit of Simon Officer dated 17 April 2025, by 5 September 2025.

3.    The applicant have leave to file the proposed statement of claim in substantially the same form as annexed to the affidavit of Simon Officer dated 17 April 2025, by 5 September 2025.

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

REASONS FOR JUDGMENT

DOWLING J

1    The applicant, Mr Marco Larobina, is a cardiothoracic surgeon employed by Royal Melbourne Hospital (Melbourne Health). In November 2024, Melbourne Health made allegations against Mr Larobina concerning comments he had made about a fellow surgeon. On 19 November 2024, Melbourne Health suspended Mr Larobina’s employment and advised that he would remain released from duty whilst an investigation was undertaken. Mr Larobina contends that the investigation and suspension are in contravention of the Fair Work Act 2009 (Cth).

2    By this interlocutory application, Mr Larobina relevantly seeks orders joining Dr Fergus Kerr, the Chief Medical Officer of Melbourne Health, as a respondent to the proceeding. Mr Larobina alleges that Dr Kerr was an accessory to the breaches of the Act by Melbourne Health. He seeks leave to file a further amended originating application and a statement of claim naming Dr Kerr. Melbourne Health and Dr Kerr oppose the joinder and leave.

3    The substantive matter was the subject of an urgent interlocutory application brought by Mr Larobina in November 2024. Mr Larobina sought that Melbourne Health revoke its suspension and that it be restrained from taking any further step in the investigation. That interlocutory application was dismissed: Larobina v Melbourne Health trading as Royal Melbourne Hospital [2024] FCA 1393 (Snaden J judgment). In that application, Melbourne Health filed an affidavit of Dr Kerr. That affidavit explained Dr Kerr’s role in the suspension and denied any unlawful reason for that suspension.

4    Mr Larobina says he has an arguable case against Dr Kerr for the purposes of the joinder and that the case has common questions of fact and law with the existing proceeding. He says the joinder would avoid a multiplicity of proceedings.

5    Melbourne Health and Dr Kerr oppose the joinder and leave on the basis that first, Dr Kerr has already gone into evidence in the proceeding and the amendment would cause him unfairness by denying him the full effect of his privilege against self-exposure to a penalty. Second, to join Dr Kerr in the present circumstances would be an abuse of process. Third, the joinder would be contrary to the overarching purpose of civil practice and procedure in s 37M of the Federal Court of Australia Act 1976 (Cth) by adding complexity and delay, for minimal benefit. Fourth, the proposed statement of claim adding Dr Kerr does not properly and fairly plead the alleged accessorial liability of Dr Kerr.

6    For the reasons that follow I have determined that it is appropriate to order that Dr Kerr be joined to the proceeding and that Mr Larobina have leave to file a further amended originating application and the proposed statement of claim.

Background facts

7    Mr Larobina is employed at Melbourne Health as a specialist cardiothoracic surgeon. He has been employed there for approximately 15 years. He had, prior to the suspension, worked a 42-hour fortnight in accordance with a 4-week rotating roster. He had performed surgeries on Wednesdays and Fridays.

8    As summarised in the Snaden J judgment, Mr Larobina’s originating application has its genesis in observations he made about a fellow surgeon and colleague in February 2024. In August 2024, a patient at Melbourne Health died, apparently as (or partly as) a result of what Mr Larobina describes as a mistake that he attributes to the surgeon about whom he had expressed concern.

9    Mr Larobina claims that he exercised workplace rights on several occasions throughout 2024 by making various complaints or inquiries about the safety of his workplace and complaints about alleged adverse actions taken against him or threatened to be taken against him by Melbourne Health. The adverse actions alleged include threats to remove him from the “Friday surgery list”, a threat to escalate disciplinary action unless he withdrew his complaints and enquiries, and a suspension from his employment on 19 November 2024 by way of a letter signed by Dr Kerr. Mr Larobina complains he has been subject to adverse action and coercion in contravention of ss 340 and 343 of the Act. Mr Larobina also says that Melbourne Health breached its duty under s 41(2) of the Health Services Act 1988 (Vic) and is liable in tort.

10    Following his suspension from employment on 19 November 2024, Mr Larobina filed an originating application and concise statement on 29 November 2024 seeking interlocutory relief that Melbourne Health revoke its suspension and be restrained from taking any further step in the investigation and disciplinary process. He filed an amended originating application and amended concise statement on 3 December 2024 which maintained this claim. He also filed a notice to produce on 4 December 2024 seeking production of certain documents from Melbourne Health. In support of the interlocutory relief, Mr Larobina relied upon an affidavit he swore on 29 November 2024. Melbourne Health relied upon four affidavits affirmed on 2 December 2024, being affidavits of Prof Benjamin Thomson, Dr Robert Feiler, Prof Michelle Dolan and Dr Kerr.

11    It is necessary to say something about Dr Kerr’s affidavit. Dr Kerr’s affidavit deposes that he was the decision-maker who decided to suspend Mr Larobina from his employment. The affidavit deposes to the process by which he made that decision. Dr Kerr says that none of the complaints or enquiries noted in Mr Larobina’s amended concise statement or affidavit dated 29 November 2024 formed any part of his reasoning when making the decision to suspend. Dr Kerr says that in making the decision, he focussed upon alleged comments that Mr Larobina had made about the surgeon who performed the surgery in August 2024 described at [8] above. Dr Kerr says he was also focussed on his concerns about the effects of Mr Larobina’s comments about the fellow surgeon, the culture of the team more generally, and therefore patient safety.

12    On 3 December 2024, Snaden J heard the interlocutory application. On 5 December 2024, Snaden J delivered judgment which dismissed Mr Larobina’s application for interlocutory relief. Snaden J was not satisfied that that the evidence established a prima facie case that Melbourne Health had subjected Mr Larobina to unlawful adverse action in contravention of s 340(1) of the Act or coercion in contravention of s 343 of the Act. As to the claim in s 41(2) of the Health Services Act, Snaden J accepted that there was a weak prima facie case but that more would be required by way of evidence of inconvenience to justify an exercise of the court’s discretion to grant interlocutory injunctive relief.

13    Where the timing of the joinder and leave application is said to be relevant to my assessment, it is appropriate to describe the procedural history of the matter after the Snaden J judgment. The matter was listed for a case management hearing on 3 February 2025. On 31 January 2025, the parties’ representatives wrote to me requesting the case management hearing be adjourned given that the outcome of Melbourne Health’s investigation into Mr Larobina was not yet known, and that the full extent of Mr Larobina’s claim would not be known until the investigation had been finalised. On 31 January 2025, I made orders by consent adjourning the case management hearing to 14 March 2025. At the case management hearing on 14 March 2025, I made orders providing a timetable for filing and serving a statement of claim, defence, and reply, and for the parties to attend mediation. Between 9 April 2025 and 15 April 2025, the parties’ representatives corresponded regarding the joinder of Dr Kerr, a further amended originating application, and a statement of claim.

14    On 16 April 2025, Mr Larobina filed the present interlocutory application, supported by an affidavit of Simon Officer filed on the same date. That affidavit annexes the proposed statement of claim Mr Larobina is seeking leave to file.

15    At the commencement of the hearing of this interlocutory application, counsel for Melbourne Health announced his appearance on behalf of Melbourne Health and “the proposed respondent” Dr Kerr. I treat the submissions made by Melbourne Health, oral and written, as submissions made by Melbourne Health and Dr Kerr.

Relevant rules and principles

16    Mr Larobina seeks to join Dr Kerr pursuant to rr 9.02(1)(a)-(c) and 9.05(1)(b)(ii) and (iii) of the Federal Court Rules 2011. Rule 9.02(1) provides that two or more persons may be joined in any proceeding:

(a)    if separate proceedings by or against each of them would give rise to a common question of fact or mixed fact and law;

(b)    if all rights to relief claimed in the originating application are in respect of, or arise out of, the same transaction or a series of transactions; or

(c)    by leave of the Court.

17    Rule 9.05(1)(b) relevantly provides that a party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

18    I consider the joinder in light of the following principles.

19    First, the rules as to joinder of parties are remedial and should be construed beneficially or liberally: Lois Nominees Pty Ltd v Hill [2011] WASC 53 at [33] (Beech J) and the cases there cited.

20    Second, in relation to r 9.05(1)(b)(ii), the phrase “each issue in dispute in the proceeding” is not limited to matters arising on the existing pleadings, and includes any issues subjacent to or facts which underlie the pleadings. The phrase also extends to matters which are placed in dispute by an existing party which, if determined in a particular way, would result in a finding that another person, rather than an existing party, should be called to account for the transgression alleged by the applicant: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38 (Glass JA) cited with approval in Fried v National Australia Bank Ltd [1999] FCA 737 at [12] (Weinberg J); Comcare v John Holland Rail Pty Ltd [2009] FCA 660; 109 ALD 508 at [13] and [23] (Jessup J).

21    Third, an applicant for joinder must show at least an arguable case against the parties proposed for joinder, at least to the standard of being able to resist an application for summary judgment if the relevant persons had been sued in separate proceedings: see Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277 at [23] (Dodds-Streeton J); Sienkiewicz (as trustee for Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd [2013] FCA 977 at [6] (Robertson J); Revill v John Holland Group Pty Ltd [2020] FCA 1633 at [21] (Jackson J). In Comcare at [13], Jessup J suggested that even an arguable case may not suffice. This view was followed by Greenwood J in Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; 270 ALR 13 at [153]-[154], who suggested that an applicant seeking joinder must demonstrate an “affirmative case” against the party proposed to be joined. I consider that, for the purpose of the present application, it is not necessary to consider whether a more stringent test applies because the allegations raise an “affirmative case” (about which I discuss further below).

22    Fourth, in assessing the joinder the Court should take “whatever course seems most conducive to a just resolution of the disputes between the parties, but having regard to … the costs and delay of the litigation”: Bishop v Bridgelands Securities (1990) 25 FCR 311 at 314 (Wilcox J). Melbourne Health and Dr Kerr rely on Bridgelands where Wilcox J said, after the extract above, that “considerations of costs and delay may often support the grant of leave … but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party”. I understand that sentence in the context of what precedes it, namely, the unfairness is considered in assessing what course is most conducive to a just resolution of the disputes. Or, whether there is sufficient unfairness that such a course would not be conducive to a just resolution.

23    Mr Larobina also seeks to file a further amended originating application pursuant to r 8.21(1) or the “implied incidental and necessary powers of the Court”. Rule 8.21 relevantly provides that an applicant may apply to the Court for leave to amend an originating application for “any reason”, including (a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding or (b) to avoid multiplicity of proceedings. I also understand Mr Larobina as relying on r 16.53 in applying for leave to the Court to file the proposed statement of claim given that he has already filed an amended concise statement.

Consideration

Summary of parties positions

24    Mr Larobina submits, in summary, there is an arguable case for joinder. He says that:

(1)    the claims against Dr Kerr for accessorial liability under s 550 of the Act necessarily arise out of the same series of transactions or events during the employment of Mr Larobina and which give rise to the underlying primary contraventions of ss 340 and 343 by Melbourne Health;

(2)    the disputes between the present parties and the dispute with Dr Kerr are related disputes, and that joinder would avoid potential multiplicity of proceedings;

(3)    case management issues also support joinder given no defences have yet been filed;

(4)    there is no evidence from Melbourne Health as to any prejudice it would suffer by reason of the proposed joinder;

(5)    there has been no affidavit filed which indicates Dr Kerr intends to claim the privilege against self-exposure to a penalty if joinder is granted, and that Dr Kerr made his affidavit voluntarily and it was appreciable he could have been exposed to a penalty by making the affidavit such that any prejudice is not sufficient to defeat the joinder; and

(6)    there is no abuse of process in pursuing bona fide accessorial liability claims and that the right to seek redress against Dr Kerr has not been waived or compromised, and that it is consistent with the purpose of the civil penalty regime provided by the Act.

25    Melbourne Health and Dr Kerr say that joinder should be refused for the reasons outlined at [5] above. That is, first, Dr Kerr has already gone into evidence in the proceeding and the amendment would cause him unfairness by denying him the full effect of his privilege against self-exposure to a penalty. Second, to join Dr Kerr in the present circumstances would be an abuse of process. Third, the joinder would be contrary to the overarching purpose set out in s 37M of the Federal Court Act by adding complexity and delay, for minimal benefit. Fourth, the proposed statement of claim adding Dr Kerr does not properly and fairly plead the alleged intentional participation of Dr Kerr.

26    The four issues identified by Melbourne Health provide a useful framework for considering the relevant issues in this application. I turn now to considering each of these issues.

Penalty privilege

27    In circumstances where I am required to weigh the unfairness to Dr Kerr of being joined and on his ability to fully rely on the penalty privilege, it is appropriate to say something about the purpose and principles of that privilege.

The purpose and principles of the penalty privilege

28    The penalty privilege is the privilege to refuse to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: Australian Competition and Consumer Commission v FFE Building Services [2003] FCAFC 132; 130 FCR 37 at [13] (Emmett, Hely and Jacobson JJ). The privilege is not confined to discovery and interrogatories and is distinct from the privilege against exposure to conviction for a crime: FFE at [13] (Emmett, Hely and Jacobson JJ) citing Pyneboard Pty Ltd v TPC (1983) 152 CLR 328 at 337 (Mason ACJ, Wilson and Dawson JJ).

29    The justification for the penalty privilege is that the applicant must prove its own case and should not get any assistance from the respondent to do so: FFE at [13] (Emmett, Hely and Jacobson JJ).

30    The penalty privilege is not recognised outside judicial proceedings. It is not available to a corporation: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

31    The penalty privilege can only be abrogated by statute: FFE at [13] (Emmett, Hely and Jacobson JJ) citing Reid v Howard (1995) 184 CLR 1. It cannot be abridged or undermined by a court accepting undertakings proffered by the applicant designed to avoid or diminish the danger of the provision of the information: FFE at [13] (Emmett, Hely and Jacobson JJ).

32    Whilst in a civil penalty proceeding a respondent is required to deliver a defence, they cannot be compelled to make any admissions in relation to the matters alleged against them. That is, the penalty privilege operates to relieve a respondent from the need to deliver a defence that complies with the pleading rules if the rules would override the privilege: Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32 at [12] (Finkelstein J), endorsed in Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185 at [105] (Kerr and Wigney JJ). The Court, at least in recent times, has accommodated this aspect of the penalty privilege by enabling the respondent to rely on the privilege until the applicant’s case is concluded, then, if at that point the respondent decides to run a positive case they can deliver an amended defence that will outline their case: Mining Projects at [13] (Finkelstein J).

Whether Dr Kerr might have claimed the privilege, or might still claim the privilege

33    Counsel for Dr Kerr and Melbourne Health was appropriately careful and cautious in his submissions about whether Dr Kerr would have claimed the penalty privilege in November 2024, when he chose to swear an affidavit on behalf of Melbourne Health, had he known he would be joined to the proceeding. Dr Kerr’s submission was that he “might have” claimed it.

34    Likewise, as to whether Dr Kerr would claim the penalty privilege, for the balance of the proceeding if he were a named respondent, the submission was that “he might claim it”.

35    It is unclear whether Dr Kerr was given or offered any advice about whether it was possible that he might be joined to the proceeding at the time he gave his affidavit. In any event, there is no suggestion that the affidavit was not voluntarily made and given by him.

36    In assessing the unfairness to Dr Kerr on his ability to fully rely on the penalty privilege, it is appropriate to weigh, first, his submission that he only might have claimed it in the past, and only might claim it in the future. Second, that the affidavit given by Dr Kerr, which is said to undermine his ability to fully claim it in the future, was voluntarily given.

Can anything be done to remedy the effect on Dr Kerr’s privilege?

37    Dr Kerr submits that it is not possible to overcome the damage to his ability to fully claim the privilege. He submits, and I accept, that having made the affidavit and it having been tendered in open court, there was no method by which I might fully dilute the forensic advantage given to Mr Larobina. The forensic advantage was said to arise because the affidavit might assist Mr Larobina in planning and running his case and in the cross-examination of Dr Kerr. It is difficult to assess that advantage with any precision. Mr Larobina did not identify any method or concession by which the impact on Dr Kerr’s penalty privilege might be diluted. I weigh the effect on Dr Kerr’s privilege in the assessment of the unfairness to Dr Kerr on his ability to fully rely on that privilege.

Conclusions on the penalty privilege

38    As the principles above make clear, the rules as to joinder of parties are remedial and should be construed beneficially or liberally. Within that context, and accepting for the moment that there is an arguable case against Dr Kerr (which is addressed further below), it is necessary for me to weigh and assess the unfairness to Dr Kerr.

39    Remembering that the penalty privilege is designed to ensure that a respondent, or potential respondent, cannot be compelled to make any admissions in relation to the matters alleged against them, I consider the potential unfairness to Dr Kerr is diminished by his decision to voluntarily depose to the matters contained in his affidavit. I accept, as I say above, in that assessment I am unaware of what advice Dr Kerr was given, prior to his affidavit, about the likelihood that he might be joined as a respondent.

40    I also consider the potential unfairness to Dr Kerr is diminished in circumstances where he accepts that he only might have claimed the privilege in the past and only might claim it in the future. I weigh in that possibility the obligation upon Melbourne Health to overcome the reverse onus contained in s 361 of the Act as to its reasons for acting. In other words, it might fail to discharge its reverse onus without evidence of Dr Kerr as the alleged decision maker. Of course, that would not prevent Dr Kerr maintaining the privilege until the close of Mr Larobina’s case.

41    Against those matters, I weigh the forensic advantage to Mr Larobina that the parties accept cannot be remedied. However, as I say above, it is difficult to determine the precise weight of that forensic advantage.

42    Weighing all of those matters together, I am satisfied that there is not sufficient unfairness to Melbourne Health and Dr Kerr so as to refuse the application for joinder on this basis.

Abuse of process

43    Melbourne Health and Dr Kerr submit it would be an abuse of process in the present circumstances to join Dr Kerr to the proceedings. They say that it can be an abuse of process to conduct litigation in such a way that deprives an individual of their right to claim the penalty privilege: Tucker v Broderick [2021] FCA 1492 (O’Callaghan J) at [70]. They also say that abuse of process is a broad concept, and “is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ).

44    Three overlapping issues flow from the submission of abuse of process. I will address each in turn.

(1)    Why did Mr Larobina not name Dr Kerr as a respondent at the commencement of the proceedings?

(2)    Was the decision not to name Dr Kerr as a respondent deliberate or inadvertent?

(3)    Why was Dr Kerr not joined until April 2025?

Why did Mr Larobina not name Dr Kerr as a respondent at the commencement of the proceedings?

45    In Mr Larobina’s affidavit dated 29 November 2024, Mr Larobina expresses knowledge of what appear to be the essential communications relevant to his claims. For example, the 19 November 2024 letter signed by Dr Kerr suspending Mr Larobina from his employment was described in, and annexed to, that affidavit.

46    Melbourne Health and Dr Kerr say that Mr Larobina knew the key facts involving Dr Kerr from the outset, and that it was a “deliberate forensic decision” not to join Dr Kerr at the commencement of the proceedings in November 2024. They say the inference that Dr Kerr was the decision-maker was available at the time of commencement of the proceeding.

47    Mr Larobina says that while he knew about the essential communications in November 2024, it was not fully clear that Dr Kerr was the decision-maker of the suspension decision until he received Dr Kerr’s affidavit. Mr Larobina says the affidavit “completes, at least from the material factual sense … not just the knowledge components, but the conduct, the practical connection … to describe that knowingly concerned aspect of s 550”.

48    Mr Larobina describes that the originating application was made “with some haste” and that it dealt with the “confined point” of whether there should be an interim injunction. He describes things moving “quickly” in relation to the commencement of proceedings and seeking injunctive relief. I accept that things did move “quickly”. Consistent with the background facts described above, Mr Larobina was suspended from his employment on 19 November 2024. The originating application was filed 10 days later on 29 November 2024. The interlocutory application was heard four days after that on 3 December 2025 and the Snaden J judgment was delivered on 5 December 2025. Mr Larobina submitted that the focus at the time of the interlocutory application was having the suspension set aside.

49    I note that the onus in satisfying the Court that there is an abuse of process lies upon the party alleging it, and that the onus is a “heavy one”: Willliams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); see also Mckellar obh of Wongkumara People v State of Queensland [2020] FCA 1394 at [119]-[122] (Murphy J).

50    I accept that while there was an inference available at the commencement of proceedings that Dr Kerr was the decision-maker of the suspension decision because he had signed the suspension letter, Dr Kerr’s affidavit made clear that he was the decision-maker and the process by which he made the decision. These matters deposed of in the Dr Kerr affidavit may plausibly have added substance to a claim under s 550 for accessorial liability that may not have been fully apparent at the commencement of proceedings. In circumstances where there is no evidence as to the circumstances in which the decision was made not to name Dr Kerr as a respondent in November 2024, I am not satisfied that to allow the joinder of Dr Kerr in these circumstances would “bring the administration of justice into disrepute” in the Tomlinson sense. I am therefore not satisfied that the failure to name Dr Kerr as a respondent at the commencement of proceedings, but seeking to do so now, constitutes an abuse of process.

Was the decision not to name Dr Kerr as a respondent deliberate or inadvertent?

51    Mr Larobina submits there was no decision made to “stay quiet and see what he [Dr Kerr] said”, and that even though the originating application was prepared hurriedly, I should not conclude that means there was a deliberate decision not to name Dr Kerr as a respondent. Mr Larobina drew an analogy between seeking to join Dr Kerr after his affidavit was filed to other appropriate and fair processes which occur during litigation, such as discovery, which can lead a party to seek joinder, raise an additional cause of action or seek to amend a pleading.

52    Melbourne Health and Dr Kerr say that if Mr Larobina’s intention was to join Dr Kerr, and he did not join him at the outset so that he could take advantage of affidavit material being put on, that would constitute an abuse of process. Melbourne Health and Dr Kerr say that even if that is not the case, an abuse of process arises due to:

the combination of not joining [Dr Kerr] last year, at the commencement of the proceeding, and now doing so with the benefit of Dr Kerr’s affidavit, and taking the forensic advantage of considering that affidavit for the purposes of, many months later, seeking to join him as a party.

53    However, in oral submissions they conceded that if Dr Kerr was not named as a respondent at the commencement of the proceedings due to “inadvertence”, then that would be a case of unfairness relevant to the Court’s discretion to allow joinder rather than a case of abuse of process.

54    As above, I confirm that that the onus in satisfying the Court that there is an abuse of process lies upon the party alleging it, and that onus is a “heavy one”: Willliams at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).

55    Again, there is no detailed evidence about the circumstances in which the decision was made not to name Dr Kerr as a respondent in November 2024. While I accept it might be sufficient to establish an abuse of process if Mr Larobina deliberately decided not to join Dr Kerr until Mr Larobina had received affidavit material, there is no evidence before me establishing whether the decision was deliberate or inadvertent. I have only Mr Larobina’s unequivocal submission that there was no deliberate decision made not to name Dr Kerr. In circumstances where I cannot be satisfied on the evidence that there was a deliberate decision made to not name Dr Kerr, I cannot be satisfied that failing to name Dr Kerr as a respondent at the commencement of the proceedings was an abuse of process.

Why was Dr Kerr not joined until April 2025?

56    The parties made submissions at the hearing about the purported delay between the time Dr Kerr’s affidavit was filed on 2 December 2024 and Mr Larobina seeking to join him as a party in April 2025. These submissions were not specifically put as being an “abuse of process”. Out of completeness, I consider these submissions both as a possible abuse of process and as possible unfairness which may weigh against the exercise of my discretion.

57    Melbourne Health and Dr Kerr say that Mr Larobina had no reason not to seek to join Dr Kerr in December 2024 once the affidavit had been received. They say that the delay until April 2025 in seeking to join Dr Kerr is unexplained, and is a circumstance that weighs against joinder, although they concede it is not a “weighty” circumstance.

58    Mr Larobina says that a “large portion” of the delay in seeking to join Dr Kerr was because the parties had agreed to some adjournments to accommodate the intended outcome of an investigation against Mr Larobina and which may help bring to light the full extent of his claims. He also points to the Christmas period and the time spent negotiating orders to file pleadings as other contributing factors to the delay.

59    I understand from the affidavit of Simon Officer that the possibility of joining Dr Kerr as a respondent was first raised with Melbourne Health on 9 April 2025. While it may have been possible for Mr Larobina to seek to join Dr Kerr earlier, I am not satisfied that the delay is “unexplained”. I accept that the circumstances outlined by Mr Larobina contributed to the delay to some extent. I accept that the Christmas period could have impacted the parties during December 2024 and January 2025. I accept that waiting for the outcome of the investigation into Mr Larobina delayed the progress of proceedings until the case management hearing on 14 March 2025. I am not satisfied that any residual delay between 14 March 2025 and 9 April 2025, a period of 26 days, rises to the level of abuse of process or a level of unfairness that weighs significantly against joinder.

Overarching purpose of civil practice and procedure provisions

60    Melbourne Health and Dr Kerr submit that the joinder of Dr Kerr would be contrary to the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court Act as it could cause added delay and complexity to the proceeding, and cause the parties to incur additional costs.

61    As to delay, Melbourne Health and Dr Kerr first submit that Dr Kerr is entitled to seek separate legal representations for trial, which would “necessarily cause delay and inefficiency”. Second, that should Dr Kerr be joined, he could choose to rely on the penalty privilege as outlined by Finklestein J in Mining Projects at [11] to [17]. This may entail Dr Kerr being permitted to amend his defence after the closure of Mr Larobina’s case, to make positive allegations of material fact, and then to adduce, for the first time, a new and potentially detailed evidentiary case. Melbourne Health says that this would “inevitably delay the trial and thus lead to inefficiency which is contrary to the overarching purpose”.

62    As to complexity, Melbourne Health and Dr Kerr submit that when an individual managerial employee is sought to be joined in addition to the employer, in a case such as this, it creates a level of complexity as to how the respondents defend the proceeding by reason of the penalty privilege. It says further that joining a managerial employee in these circumstances creates a “tactical advantage” for the employee such that the employer will settle proceedings. It says that there is an inference that the joinder is being used to achieve this tactical purpose.

63    Melbourne Health and Dr Kerr say that these delay and complexity considerations must be considered in light of the fact that there is “no suggestion that [Melbourne Health] could not meet any monetary judgment by way of compensation or penalty should it be found liable”. Any financial benefit to Mr Larobina in joining Dr Kerr is minimal. Mr Larobina emphasises that the benefit in joining Dr Kerr is in deterring “employers from the way that they implement suspensions and the way that they conduct investigations in circumstances where employees have repeatedly raised legitimate complaints and inquiries”.

64    As explained above, I find that the submissions relating to the penalty privilege and its effects are subject to, and must be weighed against, the possibility that Dr Kerr may not claim the penalty privilege at all. That is, the relevant weighing exercise is the delay and complexity of the trial without Dr Kerr joined, against the delay and complexity of the trial with Dr Kerr joined and the possibility that he might claim the privilege. Melbourne Health conceded that should Dr Kerr refuse to claim the penalty privilege, the trial would proceed much like it otherwise would have and the complexities and delay with the trial would not eventuate. In these circumstances, where I am weighing up the mere possibility that Dr Kerr may claim the penalty privilege, I do not consider the delay and complexity that may be occasioned is sufficient to offend s 37M. I also do not consider that it serves as a strong factor in favour of denying the joinder.

65    In regard to the submission that Dr Kerr seeking separate legal representation may occasion delay, this is not a strong factor in favour of denying the joinder, nor is it contrary to s 37M. The matter was commenced in the past nine months. No orders for evidence in the substantive proceeding have been made. A trial has not been timetabled. A further interlocutory application for discovery and costs, filed by Mr Larobina, remains to be heard. Should Dr Kerr seek separate legal representation, I consider that his solicitors would have sufficient time to prepare without causing delay to the matter.

66    I also do not consider that the alleged “tactical advantage” created by joining Dr Kerr sufficiently offends s 37M or sufficiently weighs in favour of denying the joinder. As explained, Mr Larobina justifies the joinder, at in least in part, by the penalty that he seeks against Dr Kerr and the deterrence he says will be created by that relief. On the material before me, I cannot assume that the joinder is sought only as a tactical advantage, or that any such advantage is sufficient to justify refusing the joinder.

Alleged deficiency in pleadings

67    At [88] and [89] of the proposed statement of claim, Mr Larobina alleges that Dr Kerr is accessorily liable by operation of s 550 of the Act. He pleads that Dr Kerr was “involved in making the decision” to “(a) commence the disciplinary process and/or investigation”; and to “(b) suspend Mr Larobina from his employment”. He pleads that Dr Kerr was involved in Melbourne Health’s contraventions within the meaning of ss 550(2)(a) and (c). Section 550(2)(a) provides a person is involved in a contravention if, and only if, the person has aided, abetted, counselled or procured the contravention. Section 550(2)(c) provides a person is involved in a contravention if the person has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention.

68    To support those allegations, Mr Larobina cross-refers to a number of paragraphs in the proposed statement of claim. Those paragraphs relevantly detail a meeting including Dr Kerr whereby Mr Larobina complained about whether the promotion of his colleague, a surgeon, was safe for patients and staff. They also detail communications either referring to Dr Kerr, copied to Dr Kerr, directed to Dr Kerr, or from Dr Kerr which relate to the complaints made by Mr Larobina about the removal of his access to the operating theatre on Fridays, or the complaint made by Mr Larobina about the promotion of his colleague (the Dr Kerr communications). The communications culminate in a communication from Dr Kerr to Mr Larobina about the “next steps” in the investigation and then the suspension letter of 19 November 2024 to Mr Larobina from, and signed by, Dr Kerr.

69    The principles concerning joinder are set out above. They include the obligation on an applicant for joinder to show at least an arguable case against the parties proposed for joinder, at least to the standard of being able to resist an application for summary judgment if the relevant persons had been sued in separate proceedings. Alternatively, they suggest that an applicant seeking joinder must demonstrate an “affirmative case” against the party proposed to be joined.

70    Melbourne Health and Dr Kerr submit that there “may or may not be a reasonably arguable accessorial liability case against Mr Kerr”. They do not positively submit that there is not such a case. They submit that “it has not been pleaded in a fair and clear, non-embarrassing way, which is not only required in every case but particularly required to be done in a case where an individual is being alleged to be an accessory in contraventions that attract civil penalties”.

71    I consider it appropriate to first assess whether there is an arguable case or affirmative case that Dr Kerr was involved in the decision to commence the disciplinary process or investigation, and to suspend Mr Larobina. I then separately assess the particular complaints about the adequacy of the pleading.

72    Melbourne Health and Dr Kerr rely upon the consideration of ss 550(2)(a) and (c) of the Act by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[178] as endorsed by Full Courts in Fair Work Ombudsman v Hu [2019] FCAFC 133; 289 IR 240 at [15] (Flick and Reeves JJ) and Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348 at [28] (Logan and Katzmann JJ). In Devine Marine, White J determined that in order to aid, abet, counsel or procure the relevant contravention (s 550(2)(a)), the person must intentionally participate in the contravention with the requisite intention: citing Yorke v Lucas (1984) 158 CLR 661 at 667 (Mason ACJ, Wilson, Deane and Dawson JJ). In order to have the requisite intention, White J determined 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: citing Yorke at 667 (Mason ACJ, Wilson, Deane and Dawson JJ). As to the notion of being “knowingly concerned” in a contravention (s 550(2)(c)), his Honour determined that “has a different emphasis from that of aiding, abetting, counselling or procuring”, finding that 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 is a “practical connection between” the person and the contravention.

73    As to aid and abet, Mr Larobina says that the meeting pleaded and the Dr Kerr communications sufficiently establish Dr Kerr’s knowledge of the essential matters. They make clear that he had knowledge of at least some of the complaints made by Mr Larobina of the investigation and the decision to suspend.

74    As to knowingly concerned, Mr Larobina again says that the meeting pleaded and the Dr Kerr communications sufficiently establish that Dr Kerr engaged in some act or conduct which implicates or involves him in the contravention so that there is a practical connection between him and the contravention.

75    I am satisfied that the pleaded meeting and the Dr Kerr communications referred to in the pleadings (albeit by way of cross-referencing), and particularly the suspension letter signed by Dr Kerr, sufficiently establish an arguable and affirmative case that Dr Kerr aided, abetted or was by act or omission, directly or indirectly, knowingly concerned in or a party to the alleged contraventions. I say that because that meeting and those communications detail the involvement of Dr Kerr. They detail at least: (a) Dr Kerr’s likely knowledge of Mr Larobina’s complaints on 28 February 2024, 9 September 2024, 24 September 2024; (b) that Dr Kerr had a role in the decision to remove Mr Larobina from the Friday operating list; (c) that Dr Kerr had a role in the conduct of the investigation of Mr Larobina; and (d) that Dr Kerr had a role in the suspension of Mr Larobina’s employment, at least by communicating the suspension to Mr Larobina. Of course, that conclusion should be understood as a conclusion about the arguable nature of Dr Kerr’s involvement and not any conclusion about the existence of a contravention.

76    Having determined that arguable or affirmative case, I separately consider whether the pleadings are so deficient that I should refuse the joinder or separately refuse leave to file the proposed statement of claim.

77    As to the adequacy of the pleadings, Melbourne Health and Dr Kerr complain that the proposed statement of claim does not plead with the necessary clarity and precision the (a) material facts said to constitute Dr Kerr’s knowledge of each element of the contraventions; and (b) specific conduct of Dr Kerr said to constitute his participation in those contraventions. They say that these defects do not allow Dr Kerr to know precisely how the case is put against him as an accessory and are liable to be struck out. Consequently, they say that leave should not be granted to allow the filing of the proposed statement of claim and proposed further amended originating application.

78    The starting point for considering the necessary level of pleadings is r 16.02(1) of the Rules, which relevantly states that a pleading must (b) be as brief as the nature of the case permits; (c) identify the issues that the party wants the Court to resolve; and (d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved.

79    Rule 16.02(2) relevantly provides that a pleading must not (c) be evasive or ambiguous; (d) be likely to cause prejudice, embarrassment or delay in the proceeding; (e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (f) otherwise be an abuse of the process of the Court.

80    Pursuant to r 8.21(1), Mr Larobina requires leave of the Court to file the further amended originating application. I understand he also relies on r 16.53(1) in seeking leave to file the proposed amend the statement of claim (though this rule was not explicitly raised in the application or submissions).

81    In KTC v David [2022] FCAFC 60 at [110]-[118], Wigney J set out the principles that apply in regard to leave to amend a pleading. Jackson J generally agreed with that statement of principles at [418]. They relevantly include:

(1)    The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated: Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [20] (Gilmour and Foster JJ); Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [14] (French CJ).

(2)    Leave to amend should generally be granted unless the proposed amendment is futile, including, for example, because the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; 176 FCR 66 at [21]-[22] (Kenny J); Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] (Stone J); Caason at [21] (Gilmour and Foster JJ).

(3)    In relation to the requirement in r 16.02(1)(d) that the pleading state the “material facts” relied on, it has been said that material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that that party has to meet and that a “bare conclusion” is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235 (Beaumont J).

82    As explained, Melbourne Health and Dr Kerr’s first complaint is that the pleadings do not provide the necessary clarity and precision regarding the material facts said to constitute Dr Kerr’s knowledge of each element of the contraventions. Again, Mr Larobina’s response is to submit that the pleaded meeting and the Dr Kerr communications are the relevant material facts. They are, presently at least, all of the material facts sought to be relied upon by Mr Larobina. As explained at [75] above, they detail at least material facts about the knowledge of Dr Kerr in relation to the pleaded meeting. They also detail that Dr Kerr had a role in the decision to remove Mr Larobina from the Friday operating list, the conduct of the investigation of Mr Larobina, and the suspension of Mr Larobina’s employment. They are the material facts that support the allegation of knowledge. Whilst the identification of those material facts is achieved by the cross-referencing of eleven grouped paragraphs, I am satisfied that they provide sufficient clarity to convey to Dr Kerr the case that he has to meet. I am satisfied that they provide sufficient clarity such that I should not refuse the joinder or leave.

83    Melbourne Health and Dr Kerr’s second complaint is that the pleadings do not provide the necessary clarity and precision regarding the specific conduct of Dr Kerr said to constitute his participation in those contraventions. Again, Mr Larobina’s response is to submit that the pleaded meeting, in which Dr Kerr participated, and the Dr Kerr communications identify the relevant conduct of Dr Kerr (as explained at [75] above). Again, I accept that they identify all of the relevant conduct presently sought to be relied upon. It is clear what the facts are that Mr Larobina presently relies upon. I am satisfied that they provide sufficient clarity to convey to Dr Kerr the case he has to meet such that I should not refuse the joinder or leave.

Disposition

84    In all of those circumstances it is appropriate that Dr Kerr be joined as the second respondent to the proceeding, that Mr Larobina have leave to file the further amended originating application in substantially the same form as annexed to the affidavit of Simon Officer dated 17 April 2025, and that Mr Larobina have leave to file the proposed statement of claim in substantially the same form as annexed to the affidavit of Simon Officer dated 17 April 2025.

Associate:

Dated:    29 August 2025