Murphy v State of Victoria [2012] VCC 2025

2 On 24 August 2012 the defendant, the State of Victoria, issued a summons seeking an order that the plaintiff's Statement of Claim filed 13 April 2012 be struck out pursuant to Rule 23.02; secondly, that the document described as "notice of the nature of the plaintiff's claim and the cause thereof and the remedy sought" be struck out pursuant to Rule 23.03; and, thirdly, that there be summary judgment for the defendant pursuant to Rule 23 on all, or alternatively some of the claims made in the proceeding.

3 On 6 September 2012, Judge Shelton ordered that that summons and the directions hearing be adjourned to 6 December, and that on or before 31 October 2012, the plaintiff provide the defendant with a further proposed amended Statement of Claim, which was to be drawn by counsel on or before 14 November, with the defendant to advise of any objections to that proposed pleading.

4 I heard the summons on 6 December 2012 and argument about the proposed pleading. It is a 25 page document, the last page of which bears the date October 2012. It states that it is settled by senior counsel, although it is not signed by senior counsel.

5 The assumption upon which the argument proceeded was that the October 2012 document contained the statement of claim on which the plaintiff wished to rely. The most recent version of the statement of claim that appears to have been filed is dated 12 April 2012, but little attention was paid to it and the plaintiff did not suggest that it was seeking to rely on that document. Versions of an expanded statement of claim were served. The latest version is contained in the October 2012 document. The argument centred on whether the plaintiff could obtain leave to file an amended statement of claim in the form of the October 2012 document and resist summary judgment on the basis of it.

6 The plaintiff argued that the orders sought by the State of Victoria could not be obtained because the legal grounds on which they were sought had already been determined adversely to the defendant in previous interlocutory hearings. The plaintiff relied on the principle of res judicata. I have found no order on the Court file dismissing an application by the State of Victoria for the striking out of the Statement of Claim or for summary judgment. I do not consider that the defendant is prevented from proceeding with its summons.

7 To obtain summary judgment, the defendant has to establish that the plaintiff's claims have no real prospects of success see s62 of the Civil Procedure Act 2010.

8 To determine the defendant's application, It is next necessary to refer in a little detail to the October 2012 expanded Statement of Claim.

9 The document contains the following pleadings. The plaintiff is in all material times a qualified and experienced administrator/computer operator. In 2004 the plaintiff further trained in Employment Case Management and as a Local Equity and Diversity Advisor. From February 1999, the plaintiff performed administrative computer functions in units of the defendant's Police Department.

10 Under the heading "Damage Suffered by the Plaintiff in 2003 and 2004", it is pleaded that from December 2003 to September 2004, the plaintiff attempted to perform administrative and computer functions in the defendant's Equity and Diversity Unit. From early December 2003 to February 2004, the plaintiff and other employees engaged in the Equity and Diversity Unit were subject to inappropriate behaviour in the form of humiliation, degradation, bullying, harassment and indecent and sexually explicit behaviour by the manager of its Police EDU, which made operation in the Unit unsafe for the plaintiff.

11 It is then pleaded that as a result of those matters, the plaintiff made a number of complaints which are particularised. In September 2004, the plaintiff made a WorkCover claim for incapacity. In paragraph 11, it is pleaded that in various correspondence and meetings between the plaintiff, the plaintiff's union, Commander Langlands and Inspector Makepeace, between 26 April 2004 and 11 March 2005, Inspector Makepeace informed the plaintiff that she intended to assist her with ongoing employment, including rehabilitation to pre-December 2003 working capacity. Subsequent to those statements of intention, an agreement document, dated 23 March 2005 was signed by the Chief Commissioner of Police and the plaintiff on 14 April 2005. The defendant confirmed its intention to comply with its obligation to the plaintiff under the agreement document by letter dated 13 April 2005, which enclosed a signed copy of the agreement document.

12 There are then four causes of action pleaded. The first is described as "Deceit of the plaintiff by the defendant (fraud)". It is pleaded as follows:**

"The representations of fact in paras 11 and 12 hereof were made by the Defendant, its servants and agents to the Plaintiff by words, documents and conduct wilfully knowing then to false or in the absence of any genuine belief that they were true in that the said agreement document purported to appoint the Plaintiff to her former position which no longer existed in her former Unit which no longer existed at a location which to the Defendant's knowledge the Plaintiff was unable to access as a result of her injuries."

**Extensive particulars of that pleading are given. The pleading of injury loss and damage flowing from the cause of action in deceit is contained in paragraph 22 to which I will return.

13 The second cause of action pleaded is for intentional infliction of personal injury as follows:**

"In addition to the Plaintiff's claims herein of Deceits (frauds) perpetrated and continuing to be perpetrated on her by the Defendant, with the intention that injury, loss and damage would be caused thereby to the Plaintiff, the Plaintiff claims that the Defendant from 8 March 2004 has acted and continues to act to intentionally inflict personal injury resulting in injury, loss and damage on her."

**The damages claimed as part of for that cause of action are again those set out in paragraph 22 of the proposed pleading.

14 The third cause of action pleaded is in negligence. In paragraph 22 it is pleaded that:**

" the Defendant was under a duty, at all relevant times, to take reasonable care for the safety of the Plaintiff. In breach of its duty it exposed her to unreasonable risk of injury which breach continues."

**15 Again, the particulars of damages that are claimed as part of that cause of action are contained in paragraph 22.

16 The fourth and final cause of action pleaded in breach of contract, and in paragraphs 26 and 27 is in the following terms:**

"From February 2004 the Plaintiff claims the Defendant purported to enter into contractual arrangements with her following injury caused to her in December 2003 and 2004.

The contractual arrangements referred to in para 26 hereof included compensating the Plaintiff for damage caused by it to her, rehabilitating her to full-time working capacity and appointing her to a permanent full-time position from 1 January 2005 at a stated rate of pay. Some of these terms and conditions were embodied in the agreement document dated 23 March 2005 annexed hereto."

**17 Paragraph 28 pleads that the defendant acted in breach of the contract by failing to provide rehabilitation assistance for the plaintiff, intentionally causing her further damage in order to preclude her from attaining full-time working capacity, or any working capacity at all, failing to appoint the plaintiff to a permanent full-time position from 1 January 2005, or at all and failing to pay her in accordance with the agreement document. The particulars of those breaches are given in paragraph 19, but the particulars of damages are those given in paragraph 22.

18 Thus, each of the four causes of action relies on paragraph 22 for a description of the loss and damage alleged.

19 Paragraph 22 sets out first particulars of injury, loss and damage. These are:

(a) stress, anxiety and major depressive disorder requiring medication and psychological and psychiatric treatment;**

(b) travel expenses to General Practitioner and Psychologist and travel time;

(c) aggravation of major depressive disorder requiring psychiatric treatment and medication;

(d) travel expenses to psychiatrists and travel times;

(e) interference with heart function, requiring hospitalisation and surgery;

(g) anxiety, major depressive disorder, pain and suffering;

(h) loss of earnings being the difference between the earnings which the Plaintiff should have received under the terms of the agreement document and her actual earnings which is continuing;

(i) borrowings occurring as a result of the Defendant's failure to pay in accordance with the agreement document or at all and interest thereon $720,000 which is increasing;

(j) cost of converting motor vehicle to gas $3,700;

20 In respect of the cause of action in deceit the following particulars of the claim are given:

(a) damages for stress, anxiety, depression and a major depressive disorder;

(b) reimbursement of medical, pharmaceutical and travel expenses;

(c) damages for pain and suffering of heart operation;

(d) payment of earnings at the rate prescribed in the fraudulent document;

(h) an order for specific performance of the terms of the agreement document;

(i) an injunction restraining the Defendant from further intentionally injuring the Plaintiff;

(j) payment of all loans made by family members to support the Plaintiff's expenses;

(k) payment of all debts incurred in an effort to survive from 2004 to current day, full details of which will be supplied at or prior to trial;

**21 The facts on which the plaintiff relies are set out in the October 2012 document. There are also affidavits filed by the plaintiff and her solicitor. The plaintiff's affidavit exhibited a chronology of 176 pages of the events that have caused her to bring this proceeding. The plaintiff's solicitor's affidavit describes the difficulty that the plaintiff has had in obtaining counsel to draw her pleading.

22 The affidavit of the solicitor for the defendant detailed the various attempts that the plaintiff has made to plead the matter.

23 The substantial ground of the defendant's application was that the plaintiff's causes of action, or some of them, fell within the terms of s134AB of the Accident Compensation Act 1985 and could only be pursued by obtaining leave under that Act.

24 The defendant argued that the plaintiff should not be permitted to file the Statement of Claim and that the proceeding in whole or in part should be summarily dismissed, because it was a proceeding in respect of an injury arising out of, or in the course of, or due to the nature of employment on or after 20 October 1999. Therefore it could not be brought unless leave was obtained. The claim for damages was regulated by s134AB.

25 The plaintiff in response to this argument said that she was willing to return to work and therefore was not required to seek leave to commence the proceeding. Also, advice had been received that this claim was outside the ambit of the serious injury statutory regime.

26 The relevant words of s134AB state:**

"(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 -

(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except -

**27 Section 134AB(2) contains a similar provision in respect of damages for pecuniary loss. The Act provides for exception that leave can be granted for the commencement of particular proceedings.

28 The words "in respect of" are very wide.[1] The term "injury" is defined to mean any physical or mental injury" :s5(1). Cases of workplace mental injury have been assumed to be claims within the ambit of the Accident Compensation Act. [2]

29 The cases in which leave is sought to bring proceedings in respect of workplace injuries are commonly sought are cases in which the cause of action that is sought to be commenced are for negligence, often for failure to provide a safe system of work. But the focus of the legislation is in the words "compensation in respect of an injury arising out of or in the course of or due to the nature of the employment". It is not material matters for present purposes what cause of action is said to give rise to an entitlement for compensation as the section focuses on the claim for compensation.

30 In this case, the plaintiff's causes of action are deceit, intentional infliction of harm, negligence and breach of contract. In respect of each of them, the damages claimed are those set out in paragraph 22.

31 I consider that in respect of the claims in deceit, intentional infliction of harm or injury and negligence, when the particulars of loss, injury and damage contained in paragraph 22 are considered, it can only be concluded that the plaintiff is seeking an entitlement to compensation in respect of an injury arising out of or in the course of or due to the nature of employment and seeking damages both for non-pecuniary loss and pecuniary loss. Such a claim is governed by the procedures contained in the Accident Compensation Act, particularly s 134A.

32 I consider in respect of those three causes of action that the plaintiff's claim has no real prospects of success because no leave to commence the proceeding under the Accident Compensation Act has been sought or obtained.

33 I have reached a different view in respect of the cause of action in contract. It is not as clear that that cause of action is subject to the procedures of the Accident Compensation Act. It relates to a contractual arrangement made after the plaintiff allegedly suffered the injury. It is at least arguable that such a cause of action does not come within the provisions of s134AB. I have taken into account that the plaintiff seeks the same heads of damages in respect of the breach of contract claim as she does in respect of the other three causes of action. However, it cannot be concluded at this point that the claim in respect of breach of contract might not be one that falls outside the ambit of s134AB of the Accident Compensation Act. The claim for breach of contract is based on events that followed the alleged injury when it is alleged that an agreement was reached to attempt to assist the plaintiff to deal with the injury and compensate her for it.

34 I should add, in view of the plaintiff listing a claim for an injunction in the particulars to paragraph 22, that I do not consider that the provisions of the Accident Compensation Act would prevent the plaintiff bringing an action for an injunction if she considered that she was likely to be subject to workplace torts. It is unnecessary for me to say anything more about that issue at this stage, because no such claim is before me.

35 The existing Statement of Claim of April 2012 pleads a cause of action in deceit. That pleading has to be read with the expanded version of the Statement of Claim in the October 2012 document. That document contains the details of the claim in deceit on which the plaintiff relies.

36 For those reasons, I consider that the defendant is entitled to summary judgment in respect of the plaintiff's claims in deceit. Secondly, I refuse the plaintiff leave to file the expanded statement of claim contained in the October 2012 document because the first three causes of action contained in it, in deceit, intentional infliction of harm and negligence would if pleaded be subject to being struck out.

37 I will allow the plaintiff to replead the breach of contract claim.

[1] McDowell v Baker [1979] HCA 44; (1979) 144 CLR 413 at 419 per Gibbs J

[2] See eg Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647 cf Owens v University of Melbourne [2008] VSC 174