Background
5 On 19 October 2015, Ms Huchinson commenced this proceeding in the Federal Circuit Court of Australia. By an order made on 12 November 2015 the proceeding was transferred to this Court. When the proceeding first came on for a case management hearing before me, I was asked, by consent, to make an order, which I made, that the applicant have leave to file and serve an Amended Application and an Amended Statement of Claim. That was done on the basis of Ms Hutchinson's submission that she intended to find legal representation in order to help her re-plead her case.
6 Despite that indication, Ms Hutchinson did not obtain legal assistance. The reason for that is not known to me. There may well be good reasons why Ms Hutchinson was unable to obtain legal assistance. In any event, on 25 February 2016 an Amended Application was filed together with an Amended Statement of Claim. Without going into detail, the Amended Statement of Claim drafted by Ms Hutchinson included significant changes. The original Statement of Claim was 764 paragraphs long over some 162 pages and traversed events from 1998 through to 2010. It was directed at apparent or possible causes of action including adverse action under ss 340, 342 and 351 of the Fair Work Act 2009 (Cth) ("FW Act") and other causes under the Occupational Health and Safety Act 1991 (Cth), the Disability Discrimination Act 1992 (Cth) and the Public Service Act 1999 (Cth).
7 The Amended Statement of Claim was shorter. A 'clean' version of the Amended Statement of Claim with deleted paragraphs removed occupied some 81 pages. The claims made by Ms Hutchinson appeared to be of narrower compass, based exclusively in adverse action claims under ss 340, 342 or 351 of the FW Act. However, Ms Hutchinson appears to have added three new claims of adverse action.
8 On 18 March 2016, I made an order that Ms Hutchinson file and serve a Further Amended Statement of Claim and a Further Amended Application. That order was made by consent and the application for that leave must have included some acknowledgment by Ms Hutchinson that her pleadings required further amendment.
9 On 31 March 2016, the Further Amended Application together with a Further Amended Statement of Claim were filed. The changes made between the Amended Statement of Claim and the Further Amended Statement of Claim were not tracked in a way that allowed those changes to be easily distinguished from the changes made between the Statement of Claim and the Amended Statement of Claim. It is difficult to know exactly the extent of the changes made by the Further Amended Statement of Claim, however, it appears that some paragraphs were deleted but yet other new paragraphs were inserted.
10 On 20 April 2016, a mediation of the proceeding was conducted by a Registrar of the Court. The proceeding was not settled.
11 On 26 April 2016, Comcare filed its application seeking that the Amended Statement of Claim be struck out.
12 It seems that a Second Further Amended Application and a Second Further Amended Statement of Claim were filed by Ms Hutchinson on about 3 May 2016. There is no record of leave having been granted for the filing of those documents. In any event, I presume that that document was prepared by Ms Hutchinson in response to Comcare's strike-out application and in an attempt to address the alleged deficiencies in the Further Amended Statement of Claim pointed to by Comcare. I should note that both in correspondence in anticipation of the strike-out application and by way of affidavit made in support of the strike-out application, Comcare provided Ms Hutchinson with a comprehensive account of the alleged deficiencies in her pleading and the basis for its contention that the pleading should be struck out.
13 For the same reason as earlier discussed, it is difficult to follow the changes made between the Second Further Amended Statement of Claim and the Further Amended Statement of Claim. It appears that substantial deletions were made. It appears that some matters previously appearing in particulars were placed into substantive paragraphs. In addition some attempt was made to more clearly link the very extensive narrative contained in the document to some of the elements of the causes of action that were pleaded.
14 On 16 June 2016, I conducted a directions hearing in relation to Comcare's strike-out application. I proposed, and the parties accepted, that the parties should engage in an informal process through which Comcare might obtain greater clarity in relation to Ms Hutchinson's claims. Although, as I understand it, exchanges between Comcare and Ms Hutchinson occurred, including the provision of various questions and answers, at the end of the process Comcare continued to assert that it had not been put in a position where it could properly understand the nature of the case it had to meet at trial. At a further directions hearing in Comcare's strike-out application, which I conducted on 21 July 2016, Comcare sought and received leave to amend its strike-out application to include an application for summary judgment.
15 On 28 September 2016, Comcare's application for strike-out and summary judgment was heard. Extensive submissions were made in writing by Comcare and provided to Ms Hutchinson which outlined Comcare's challenge to her pleading. At the hearing, Ms Hutchinson indicated that she did not intend to press the s 351 claims made in the Second Further Amended Statement of Claim and conceded that no leave to re-plead those claims should be given. She also conceded that particular paragraphs of the Second Further Amended Statement of Claim relating to her claims arising after 17 January 2014 should be struck out with no leave to re-plead. Those concessions addressed some but not all of the deficiencies which were the subject of Comcare's challenge.
16 As I said in reasons delivered on 26 October 2016 and recorded on transcript, at the hearing of 28 September 2016 Ms Hutchinson "conceded that there were a number of [other] deficiencies in the Second Further Amended Statement of Claim". She sought a further opportunity to re-plead and leave to file a Third Further Amended Statement of Claim. I granted that leave subject to three matters. First, I indicated to Ms Hutchinson that unless persuaded to the contrary, I considered that the further leave provided to her would be her last opportunity. Specifically, I informed Ms Hutchinson that whilst I would not make an order to that effect, I was of the view that unless proper cause was shown, the leave I was prepared to grant would be her final opportunity to re-plead her case. Second, I limited the grant of leave to exclude the claims made in the Second Further Amended Statement of Claim which Ms Hutchinson had conceded no leave to re-plead should be provided. Third, I left open Comcare's strike-out application and its application for summary judgment.
17 On 18 October 2016, Ms Hutchinson filed a Third Further Amended Statement of Claim. Whilst it is not easy to identify the changes made between the Second and Third Further Amended Statements of Claim, what is immediately clear is that Ms Hutchinson added a substantial amount of material. The 'clean' version of the document expanded from 35 to 58 pages. Part of the additional material appears to include the reinsertion of narrative which had previously been deleted. Despite leave having been refused, with Ms Hutchinson's agreement, to re-plead matters which occurred after January 2014, some of those matters were re-pleaded but were accompanied by an interlocutory application for leave to do so.
18 On 26 October 2016 I further heard Comcare's application for strike-out and summary dismissal. On that day I made the orders set out at [2] including an order striking out the Third Further Amended Statement of Claim. In the ex tempore reasons I gave on that day, I recorded my view that the Third Further Amended Statement of Claim was an oppressive pleading primarily because of its ambiguity. I regarded the pleading as clouded by the inclusion of vast amounts of irrelevant material including many allegations which amounted to little more than speculation on a part of Ms Hutchinson. I noted as well that there were significant gaps in the pleading. Those gaps included the failure to identify the persons alleged to be the decision makers who, in relation to each of the multiple claims of adverse action alleged, were involved in taking the particular adverse action. As I noted in the reasons given, Ms Hutchinson conceded that particular deficiency and sought a further opportunity to re-plead her claims.
19 As my reasons went on to say, I was not unsympathetic to the fact that Ms Hutchinson was unrepresented. However, although access to justice is an importance consideration and unrepresented litigants ought not be foreclosed from pursuing genuine claims simply by reason of an inability to obtain legal assistance, there comes a point in every case where, after a number of attempts, a deficient pleading must be struck out and a further opportunity to re-plead refused.
20 I acknowledged that if Ms Hutchinson were able to obtain legal assistance it remained possible that at least some of the claims ambiguously made in the Third Further Amended Statement of Claim could be properly pleaded. I came to the view that on balance, Ms Hutchinson should be given a limited conditional opportunity to further re-plead her case and indicated that I would make orders to that effect. As Order 3 details, the condition was that any such proposed pleading be prepared and certified by a lawyer. My preparedness to give Ms Hutchinson conditional leave to re-plead was based on the indication given by Ms Hutchinson at the hearing that if further leave to re-plead was granted, she would engage a lawyer to prepare the pleading.
21 On 22 December 2016, on the basis of representations from Ms Hutchinson that she had found a lawyer to act for her in the proceeding but that the lawyer required more time to prepare the proposed pleading, I extended the time for compliance with Order 3 to 16 January 2017 on the condition that a Notice of Acting was filed by a lawyer acting for Ms Hutchinson on or before 5 January 2017. On 5 January 2017, a Notice of Acting was filed by Sam Hemachandra of FourLion Legal.
22 On 17 January 2017 I made an order by consent extending the time for compliance with Order 3 to 6 February 2017. On 18 January 2017 a Notice of Termination of Lawyer's Retainer was filed by Ms Hutchinson.