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[2020] FCA 1364
Federal Court of Australia
2020-09-24
Flick J
Original judgment source is linked above.
(Australia) Pty Ltd [2015] FCA 740 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Registry: Australian Capital Territory
National Practice Area: Employment and Industrial Relations
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
AND: DEPARTMENT OF HEALTH Respondent
JUDGE: FLICK J DATE OF ORDER: 24 SEPTEMBER 2020
FLICK J: 1 In August 2019 the Applicant, Dr Arlene Maree Taylor, commenced two proceedings in this Court - one claiming discrimination; the other essentially claiming contraventions of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). Dr Taylor's discrimination claim arose as a result of the Department of Health's consideration of her application for registration in the Australian General Practice Training Program. That claim was dismissed by a Judge of this Court (Griffiths J). An objection to the competency of that claim was upheld: Taylor v Department of Health [2019] FCA 1588. 2 The Respondent to both proceedings was named as the Commonwealth of Australia represented by the Department of Health (the "Department"). Dr Taylor was first employed by the Department in February 2016. She remains so employed by the Department. 3 In the other proceeding, an application was filed by Dr Taylor seeking interlocutory relief for the "purpose of restoring and preserving the status quo until the substantive hearing": Taylor v Department of Health [2019] FCA 1587 at [1]. Although that interlocutory relief was refused by Griffiths J, the Department proffered an undertaking. It is this second proceeding which remains before the Court awaiting final hearing. 4 A Statement of Claim was filed on 20 August 2019. Since the decisions of Griffiths J in September 2019 this proceeding has come back before the Court on seven occasions. Since his Honour's decisions, the Statement of Claim was amended in November 2019 and further amended in March 2020 with new claims added. 5 The Statement of Claim as amended which is the subject of the present application is dated 5 March 2020. It is that version of the Statement of Claim which is the subject of the present Interlocutory Application filed by the Department on 25 March 2020. That Interlocutory Application essentially seeks two orders, namely: that the Department be released from the undertaking; and that identified parts of the Statement of Claim be struck out, albeit for different reasons. The task now before the Court is a very different task to that undertaken by Griffiths J when entertaining Dr Taylor's application for interlocutory relief. His Honour's task focussed on whether there was a serious question to be tried; where did the balance of convenience lie; and whether damages were an adequate remedy. The task now entrusted to the Court is, very generally expressed, whether the form of the Statement of Claim as amended exposes any conduct of the Respondent capable of constituting "adverse action" for the purposes of s 340 of the Fair Work Act, and whether it properly informs the Respondent as to the legal and factual issues it must answer. The Statement of Claim as amended, so contends the Respondent, is deficient in a number of fundamental respects and fails with sufficient particularity to inform it of the case it has to meet. 6 It is concluded that orders should be made which are substantially as sought by the Department. The result is that the entirety of the Statement of Claim is to be struck out with liberty to replead, but that a "referral certificate" should issue enabling access by Dr Taylor to legal assistance. Subject to a further undertaking being given, it has further been concluded that the Department should be released from the undertaking given during the course of the proceeding before Griffiths J.
THE FUNCTION OF PLEADINGS & THE RULES 7 The function of pleadings, as has been long accepted, is "to state with sufficient clarity the case that must be met…": Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. Mason CJ and Gaudron J there went on to further observe: … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. Justice Dawson there also further observed (at 296 to 297): It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings… (citations omitted). But "pleadings are but a means to an end, not an end in themselves": Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd [2009] FCA 510 at [97], (2009) 256 ALR 458 at 472-473 per Jacobson J. Courts, accordingly, "do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded": Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] per Greenwood, McKerracher and Reeves JJ. 8 It has also been long recognised that a court must exercise "great caution" before striking out a pleading or part of a pleading: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6], (2005) 79 ALJR 1716 at 1719 per Gleeson CJ, McHugh, Gummow and Heydon JJ ("Favell"); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44] per Greenwood, Flick and Rangiah JJ. 9 Giving content to these generally expressed objectives is, in particular, r 16.02 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules"). The starting point for what should normally be set forth in a properly drafted pleading is the benchmark set forth as follows in r 16.02(1): (1) A pleading must: (a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and (b) be as brief as the nature of the case permits; and (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; and (e) state the provisions of any statute relied on; and (f) state the specific relief sought or claimed. Of more immediate relevance to the present challenge made by Counsel on behalf of the Department are the terms of r 16.02(2), which provides as follows: (2) A pleading must not: (a) contain any scandalous material; or (b) contain any frivolous or vexatious material; or (c) be evasive or ambiguous; or (d) be likely to cause prejudice, embarrassment or delay in the proceeding; or (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. 10 With respect to these provisions, a few general principles may be noted. 11 First, a pleading will be relevantly "embarrassing" if it is susceptible of various meanings or sets forth "confusingly intermixed" allegations. Thus, in Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], (2004) 51 ACSR 278 at 283-284 ("Shelton"), Tamberlin J observed: [18] … a court may at any stage in the proceedings order that the whole or any part of a pleading be struck out where it has a tendency to cause prejudice, embarrassment or delay in the proceedings. "Embarrassment" in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: … (citation omitted) See also: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] per Edmonds J. In Priest v New South Wales [2006] NSWSC 12, Johnson J provided another summary of the same principle: [34] A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: … (citation omitted) His Honour there went on to cite with approval the observations in Shelton. 12 Second, a pleading of certain matters should be struck out if permitting their resolution would allow those matters to dominate a proceeding and overshadow the substantial issues in dispute: e.g., Davis v Commonwealth (1986) 68 ALR 18 ("Davis"). In that case, in which the applicants challenged the legislative power of the Commonwealth to enact certain sections of the Australian Bicentennial Authority Act 1980 (Cth), Gibbs CJ struck out those parts of the pleading alleging past wrongs done to Aboriginal people. In doing so, the Chief Justice concluded (at 24): … The allegations now in question may explain the plaintiffs' feelings, but do not give them any special interest additional to that which may exist simply because they are Aboriginals. Moreover, although some of the matters of history alleged might be regarded as matters of notoriety, other allegations … would, if contested, give rise to issues of fact, which might result in a very lengthy trial. Indeed, the trial of the issues raised, …, would be likely to take very much longer than the determination of the substantial issue in the action. The fair trial of the action would in my opinion be prejudiced if the issue of standing were allowed to dominate the proceedings and overshadow the substantial question of validity. The allegations … would in my opinion tend to prejudice, embarrass or delay the fair trial of the action … and should for that reason be struck out. 13 Finally, a pleading should not "plant a forest" of allegations which are only pulled together in final submissions: cf. Forrest v Australian Securities and Investments Commission [2012] HCA 39, (2012) 247 CLR 486 at 503 ("Forrest"). French CJ, Gummow, Hayne and Kiefel JJ there observed: [27] The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it…
THE FAIR WORK ACT 14 Dr Taylor alleged contraventions of ss 340 and 351 of the Fair Work Act. Those sections are found within Pt 3-1 of the Fair Work Act, namely that Part of the Act which addresses "General protections". 15 Section 336, it should be noted at the outset, sets out the "Objects of this Part" as follows: 336 Objects of this Part (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. (2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). 16 "Workplace rights" are addressed in Div 3 of Pt 3-1 of the Fair Work Act. Within that Division, s 341(1) provides as follows: Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. 17 It is s 340(1) which relevantly proscribes as follows the taking of "adverse action" against another person: Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. 18 The phrase "adverse action" as employed in s 340(1) is relevantly defined in s 342(1) as follows: The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by … if … 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alerts the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer.
When referring to this provision, Gordon J in Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402, (2012) 208 FCR 178 ("Klein") summarised as follows what was at least "common ground" in that proceeding (at 200): [84] It was common ground that: 1. the phrase "injures the employee in his or her employment" in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25]; 2. the phrase "alters the position of the employee to the employee's prejudice", in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and 3. a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32]. 19 Section 342(3) provides as follows: Adverse action does not include action that is authorised by or under: (a) this Act or any other law of the Commonwealth; or (b) a law of a State or Territory prescribed by the regulations. 20 Division 5 within Pt 3-1 addresses "Other Protections" and within that Division, s 351(1) provides as follows: Discrimination (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. … (3) Each of the following is an anti-discrimination law: … (ab) the Disability Discrimination Act 1992; … 21 Also within Pt 3-1, but within Div 7 to that Part, s 360 provides as follows: Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. Also within Div 7, s 361 provides as follows: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. Section 361, it has been said, "casts upon an employer the onus of proving (on the balance of probabilities) that it did not take adverse action for a proscribed reason because an employee cannot be expected to know what was in the employer's mind when the action was taken": BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 at [96], (2013) 219 FCR 245 at 273 per Flick J (Dowsett J agreeing). 22 For the purposes of s 342(1), the term "discriminates" is not confined to direct discrimination: Klein [2012] FCA 1402, (2012) 208 FCR 178. After setting out the competing arguments, her Honour there concluded (at 206): [102] The MFESB's submission proceeds upon a fundamental misconception of what may constitute indirect discrimination. It is now recognised that an employer's particular reason for choosing a "facially neutral" criterion may in fact be its adverse impact on a protected group. In another words, although the employer chose a seemingly innocent or innocuous criterion, the employer did so for a prohibited reason or basis. There is nothing in the language of Pt 3-1 of the FW Act that would support limiting "discrimination" for the purposes of Item 1(d) of the definition of "adverse action" in s 342 so as to exclude "facially neutral" or indirect discrimination of that kind. As Mason J said in General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 617 in relation to the predecessor of s 361 of the FW Act: … the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge. See also Barclay [[2012] HCA 32, (2012) 248 CLR 500] at [50]. 23 Although Dr Taylor in the present proceeding seeks to challenge a myriad of issues surrounding her employment, and obviously does so in a context where she remains employed, s 340 and related provisions do not afford an opportunity to raise "whatever issues she wishes about the validity of steps taken". Section 340 is a more focussed inquiry and requires, in particular, attention to be directed to why action has been taken: cf. Khiani v Australian Bureau of Statistics [2011] FCAFC 109. Gray, Cowdroy and Reeves JJ there relevantly observed: [31] … A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right. [32] The first question to be addressed in such a case is whether adverse action was taken… "A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome": Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J. The "focus … must be on whether the employer has taken the adverse action for a proscribed reason": Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16] per White J. See also: Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [101], (2017) 256 FCR 306 at 331 per Bromberg J. 24 As s 340 makes self-evident, specific attention must be directed to whether action was taken "because of" a proscribed reason: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500. In commenting upon the terms of s 346 of the Fair Work Act, Gummow and Hayne JJ there concluded (at 534 to 535): [100] The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards). [101] The use in s 346(b) of the term "because" in the expression "because the other person engages … in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge. Their Honours continued: [104] … An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.
THE ADVERSE ACTION RELIED UPON 25 As pleaded, the Statement of Claim filed on 5 November 2019 sets forth 20 "claims". 26 The Statement of Claim dated 5 March 2020 sets forth additional "claims". The "Table of Contents" to the current form of the Statement of Claim summarised the "claims" now sought to be advanced as follows (without alteration): Table of Contents Claim 1a [Amended] - Information sent to independent medical examiner, provided to Arlene Taylor, on 18 May 2018 .......................................................................................................... 4 Claim 1b [Amended] - Information provided to independent medical examiner on 18 May 2018 ........................................................................................................................................... 8 Claim 2 [Amended] - Alteration to working hours (17 April 2018 - 29 May 2018) ............... 13 Claim 3 [Amended] - Medicinal Cannabis Section Recruitability Application ….....................16 Claim 4 [Amended] - Signal Investigation Unit MO2 Position (2018) .................................... 18 Claim 5 [Amended] - Formal directions about social media use (9 April 2019) ..................... 23 Claim 6 [Amended] - Notice of Investigation (2 May 2019) ................................................... 26 Claim 7 [Amended] - Urban Bean Café incident (1 July 2019) ............................................... 31 Claim 8 [Amended] - Blocking JobAccess Assessment (July 2018 - April 2019) .................. 33 Claim 9 [Amended] - Opposed return to work in Branch (Janet Quigley - December 2017).. 36 Claim 10 [Amended] - Pressured to work from home (21 February 2018 - 29 May 2018)..... 39 Claim 11 [Amended] - Reasonable adjustments not provided (March 2016, February 2018 - May 2018, August 2019) ........................................................................................................ 41 Claim 12 [Amended] - Formal direction to leave workplace (29 May 2018) .......................... 48 Claim 13 [Amended] - No allocated job role (June 2018 - March 2019) ................................ 52 Claim 14 [Amended] - Exclusion from work between 29 May 2018 and 8 August 2019 ....... 55 Claim 15 [Amended] - Formal direction to leave workplace (28 June 2019) .......................... 62 Claim 16 [Amended] - Cancellation of IT access (October 2018 and June 2019) ................... 64 Claim 17 [Amended] - Fitness for continuing duty assessments (May 2018 and October 2018) .................................................................................................................................................. 67 Claim 18 [Amended] - Told not suited to the APS in December 2016 .................................... 70 Claim 19 [Amended] - Proposal to make breach decision regarding 2 May 2019/19 June 2019 notice of investigation ............................................................................................................. 73 Claim 20 [Amended] - Notice of investigation (9 August 2019) ............................................. 76 Claim 21 [New] - Suspension from Employment (24 January 2020) ...................................... 81 Claim 22 [New] - Formal Direction - Access to Premises (24 January 2020) ........................ 86 Claim 23 [New] - Suspension of TRIM Access (23 January 2020) ........................................ 88 Claim 24 [New] - Cancellation of IT Access (24 January 2020) ............................................. 89 Claim 25 [New] - Formal Direction not to communication with Immunisation Branch Staff (Balmanno) ............................................................................................................................. 91 Claim 26 [New] - T-coordination inbox ................................................................................. 93 Telecommunications (Interception and Access) Act 1979 s.7 ................................................................. 96 Claim 27 [New] - Failure to Provide Reasonable Adjustments ............................................... 97 Claim 28 [New] - Model Litigant breach ............................................................................. 100 Claim 29 [New] - Selling me as someone with a disability to work areas (including TGA).. 106 Claim 30 [New] - Employee representation policy ............................................................... 108 Claim 31 [New] - Monitoring and Surveillance .................................................................... 110 Claim 32 [New] - Formal Directions .................................................................................... 115 Claim 33 [New] - "Beauchamp Books" Destruction ............................................................. 117 Claim 34 [New] - PID Formal Direction ............................................................................... 121 Claim 35 [New] - Refusal to Provide Outcomes and Secret Investigations ........................... 123 Claim 36 [New] - Supernumery roles ................................................................................... 125 Claim 37 [New] - Notice of Investigation 19 February 2020 ................................................ 127 Claim 38 [New] - Impacting on Ability to Pursue ComCare Appeal and Refusal to Provide Documents in a Timely Manner ........................................................................................... 129 Claim 39 [New] - Refusal to Review Suspension (28 February 2020) ................................. 132 Claim 40 [New] - Matt Yannopoulos Email (20 December 2018) ......................................... 135 This Table of Contents identifies those "new" claims which have been added and reveals that all of the former claims which were before Griffiths J have since been "amended". As then identified by his Honour ([2019] FCA 1587 at [20]), the "primary matters concerning her adverse action claims" centred upon: the substantial number of formal directions issued to her by the Department; the allegations that she breached the Australian Public Service Code of Conduct ("APS Code of Conduct") as raised in the notices of investigation dated 2 May 2019 (as amended on 19 June 2019) and 9 August 2019; and her exclusion from the workplace between 29 May 2018 and 8 August 2019 despite Dr Taylor having provided multiple medical clearances concerning her fitness to return to work. These remain "primary matters" of concern to Dr Taylor. 27 The formulation of the claims as they now appear in the Statement of Claim as filed in March 2020 follows the format as ordered by Griffiths J on 9 October 2019, namely: … 3. On or before 4 November 2019, the applicant file and serve a table providing the following particulars of the claims on which she intends to rely in support of her claim for final relief: a. a precise description of the action allegedly taken against her; b. the date(s) on which the alleged action occurred; c. the person/s who took the alleged action; and d. the reason/s why it is alleged the action was unlawful, including: i. if it is alleged the action breached s 340 of the Fair Work Act 2009 (Cth), the reason why this is alleged, including: 1. the Item number/s in s 342(1) of the Fair Work Act 2009 (Cth), the action allegedly constitutes 2. the acts, matters and circumstances relied upon in alleging the action breached s 340(1) or (2) ii. if it is alleged the action breached some other statutory provision: 1. the statutory provision/s allegedly breached 2. the acts, matters and circumstances relied upon in alleging the action breached this provision/s For example: Date Action Person/s Reason why unlawful
28 The Statement of Claim as filed by Dr Taylor in this format obviously involved considerable effort on her part and obviously involved a fair degree of discipline of thought in separately addressing each of the matters referred to. 29 But Counsel for the Department contends that the Statement of Claim as filed and as now amended still contains a number of fundamental deficiencies such that it should be struck out. 30 By reference to the Table of Contents, Counsel for the Department contended that there were four separate reasons why one or other of these claims should be struck out, namely: claims 1a, 9, 10, 26, 28, 33 and 35 could not amount to "adverse action"; claims 8, 26, 28, 31 32, 33, 36 and 38 failed to make any allegation that action had been taken "because of" the exercise of a workplace right, as required by s 340(1); claims 27, 29, 31, 33, 35, 36 and 38 were scandalous, ambiguous, or likely to cause prejudice, embarrassment or delay; and those claims identified by reference to its March 2020 Interlocutory Application contain allegations as to the commission of a variety of offences of legislation of various degrees of seriousness without any identification of the facts which would support such allegations. There remains no surviving claim at all if the entirety of these claims are struck out. 31 Claims 1a and 33 need not be considered. Each of those claims was abandoned by Dr Taylor during the course of the hearing. 32 Notwithstanding the grouping of these bases upon which the Department seeks to have various claims made in the Statement of Claim struck out, those bases frequently overlap in respect to an individual claim. It is the very multiplicity of claims sought to be advanced - with the number of claims having doubled since the proceeding was before Griffiths J - which has contributed to this "overlapping" of the factual substratum of one or other of the claims. There are, with respect, "confusingly intermixed" allegations: cf. Shelton [2004] FCA at [18], (2004) 51 ACSR at 283-284 per Tamberlin J. 33 In many instances, one of the bases upon which the Department seeks relief may not have been sufficient to justify an order striking out a particular claim. But the combination of deficiencies in a particular claim could potentially justify the striking out of that claim. In some claims, the challenge made by the Department could potentially be addressed by striking out part of an allegation made without altering the claim. Each claim should, nevertheless, be considered - and has been considered - on its own individual merits.
Adverse action & AGS lawyers 34 With reference to the first of the four broadly described bases of objection, Counsel submitted that a number of claims made by Dr Taylor should be struck out either on the basis that: the "precise description of the action allegedly taken" failed to disclose conduct which could constitute "adverse action" - those being claims 1a, 9, 10, 26, 28, 33 and 35 or that: claims 5, 7, 16, 20, 21, 22, 28, 37, 38 and 39 "allege that 'AGS Lawyers'" or other named persons "took the alleged action", those people being "all employees if the Australian Government Solicitor" who could "in no sense ... be considered an 'employer' of the applicant". In claims 9 and 10, it may presently be noted, Dr Taylor also states that in addition to a contravention of s 340 of the Fair Work Act there has also been a breach of s 351. 35 Although it is necessary to consider each individual claim as made by Dr Taylor, it is presently sufficient to refer to individual claims with a view to testing the submissions being advanced on behalf of the Department. 36 If reference is made to claim 10, by way of example, Dr Taylor provided as follows the "precise description of the action allegedly taken": Between February 2018 and May 2018, Janet Quigley and Derek Bazen attempted to pressure me into working from home (without appropriate work task guidance or supervision), and against my expressed wishes. This was in the context of them not wanting me in the workplace as a result of my disabilities and declining mobility. 37 Albeit not expressed in the form of a traditional pleading, the submission advanced on behalf of the Department that an "attempt to pressure" Dr Taylor "into working from home" could not constitute "adverse action" is not self-evidently correct. It could be possible to regard the exertion of such pressure as discrimination between employees within Item 1 of the Table set forth in s 342(1). Indeed, in her Statement of Claim when identifying "the Item number/s in s 342 of the Fair Work Act 2009", Dr Taylor expressly refers to Item 1(c) and (d). But no facts are referred to from which any finding could be made as to "discrimination" against Dr Taylor. It is nevertheless not at all self-evident that a lawyer proficient in drafting "adverse action" claims could not re-draft the allegation to more specifically address the concern of the Department. When considering the adequacy of a pleading and the question as to whether a claim should proceed to hearing for ultimate resolution, it is no sufficient answer - as was the submission advanced on behalf of the Department - to contend that as a factual matter Dr Taylor did not end up ever working from home. A separate and discrete challenge to claim 10 advanced by the Department was that the claim as drafted by Dr Taylor went on to allege contraventions of s 351 of the Fair Work Act, s 5(1) of the Disability Discrimination Act 1992 (Cth) (the "Disability Discrimination Act") and s 13 of the Public Service Act 1999 (Cth) (the "Public Service Act"). But there is no self-evident reason why the discrete allegation as to contraventions of the Public Service Act could not be struck out and leave the allegation as to a contravention of s 351 of the Fair Work Act. Although claim 10 as drafted focusses attention on s 340 of the Fair Work Act, Dr Taylor unequivocally alleges a contravention of s 351 as well. But the facts relied upon to make out a claim of "discrimination" for the purposes of s 351 are somewhat elusive. Had it not been for the conclusion that the deficiencies in the Statement of Claim as a whole are such that it is better for it to be struck out in its entirety, considered in isolation claim 10 may not have been struck out. 38 By way of further example, in claim 20 Dr Taylor provided as follows the "precise description of the action allegedly taken" (without alteration): On 9 August 2019, Tracey Frey signed a Notice of Investigation, containing eight allegations that I have breached the APS Code of Conduct. This Notice of Investigation was given to me on 12 August 2019 (my 3rd day back at work after the exclusion period of 14 months and 9 days). Tracey Frey gave evidence in the Federal Court of Australia, on 25 September 2019, that individuals in the Workplace Behaviour Performance and Conditions Section had been collecting and compiling allegations to include in this Notice of Investigation since 2 May 2019; with no identified end-point beyond the objective observation that the Department of Health provided this too me almost immediately after I returned to work. The Notice of Investigation was provided as part of the Department's plan to terminate my employment under s. 23 of the Public Service Act 1999. Ms Frey was aware of this plan as she was in attendance at a large number of meetings (including with the AGS lawyers) where the 'strategy' for achieving my termination was discussed. The meeting notes (handwritten) leading up to my return to work on 8 August 2019, clearly outline the timing of the Notice of Investigation delivery was deliberately timed and there was discussion as to whether they could suspend me at the same time (or shortly after - once making a decision about the first NOI). With respect to this claim, Items 1(b), (c) and (d) of s 342(1) are relied upon. Section 351 of the Fair Work Act is not relied upon. The Statement of Claim as drafted by Dr Taylor goes on to identify the persons against whom the allegation is made as follows: Tracey Frey, Macushla Cosgrave, Catherine Milner, Sarah George, Patricia Finkel, Rachel Balmanno, Catherine Mann, Ashley Arthur, Felicia Nevins (other involved AGS lawyers) etc Thereafter set forth in considerable detail are "the act, matters and circumstances relied upon in alleging the action breached s340(1) or (2)". There detailed are the "workplace rights" relied upon. 39 If reference is made to the factual substance of the claim, the 9 August 2019 Notice of Investigation includes breaches of a direction given on 10 July 2019 by Ms Balmanno. That Direction was the subject of considerable attention by Griffiths J: [2019] FCA 1587 at [21] to [23]. Part of that Direction provided as follows: ….. 3. I direct you to act in a way that is consistent with your obligations under the APS Code of Conduct, the APS Values and the APS Employment Principles when corresponding with the Department and in your interactions with the Department and its agents. In particular, I remind you of the requirement to treat everyone with respect and courtesy, and without harassment. 4. Upon your return to work, I direct you to spend the time you are paid for whilst at work on the tasks which have been assigned to you by your line management. However, if you need to raise any issues with the operation of the Return to Work Plan, you may spend paid work time on this provided the amount of time is reasonable and not excessive. Similarly, you may also spend paid work time in order to respond to and participate in processes undertaken for the purposes of the Public Interest Disclosure Act 2013. Variation to this direction may be considered on a case-by-case basis, by seeking prior approval from me or your supervisor. 40 It is understood to be the position of the Respondent that it quite properly accepts that this claim is susceptible of constituting adverse action. But the difficulty lies in Dr Taylor identifying the statutory provisions which she contends were breached as follows (without alteration): Crimes Act 1900 (ACT) s.35 - Stalking (Sarah George, Rachel Balmanno, Cathy Milner, Tracey Frey, Felicia Nevins, Catherine Mann). Public Interest Disclosure Act s. 19 - Reprisal action for making or proposing to make a Public interest Disclosure. Work Health and Safety Act 2011 s.104: Prohibition of Discriminatory Conduct Australian Privacy Principle 6 Public Service Act 1999 s.13: APS Code of Conduct Although a contravention of any statutory provision cannot be summarily dismissed as being of little concern, some contraventions are more serious than others. Of present concern are two considerations, namely: an allegation of a contravention of s 35 of the Crimes Act 1900 (ACT), that being a particularly serious allegation; and included within those persons whom Dr Taylor alleges contravened that provision is Ms Mann, who is understood to be an employee of the Australian Government Solicitor's Office. In addition to this express reference to Ms Mann, there is no specification at all as to which other persons are intended to be included within the phrase "…(other involved AGS lawyers) etc…". 41 As to the former consideration, s 35(1) of the Crimes Act 1900 (ACT) provides as follows: A person must not stalk someone with intent - (a) to cause apprehension, or fear of harm, in the person stalked or someone else; or (b) to cause harm to the person stalked or someone else; or (c) to harass the person stalked. Maximum penalty: (a) imprisonment for 5 years if - (i) the offence involved a contravention of an injunction or other order made by a court; or (ii) the offender was in possession of an offensive weapon; or (b) imprisonment for 2 years in any other case. The maximum terms of imprisonment prescribed underlines the seriousness of the offence of "stalking with intent". With reference to this provision, Higgins CJ in Henderson v McKenzie [2009] ACTSC 39 emphasised the necessity to address a necessary element of the offence, namely "intent", as follows: Intent [50] The offence of stalking differs from that of breaching a protection order, though the conduct may be identical (see, for example, Firestone v ANU (2004) 184 FLR 53 cf Longfield v Glover (2005) 191 FLR 332). In the case of breach of a protection order the offender need only knowingly engage in an act that breaches the order being aware of the terms of it. Whilst the offender must be proved to know of relevant circumstances making his or her conduct a breach of the order (eg, presence of the aggrieved person at a location being approached), it is not necessary to prove an intent to harass, intimidate or alarm the aggrieved person. It is necessary to prove such an intent in the case of stalking. [51] An intent to harass a person, being the intent here alleged, must, it seems to me, embrace an intent to cause annoyance, at the least, to the person subjected to the acts constituting the stalking in question. Subsection 35(4) Crimes Act includes, within the embrace of intent, recklessness as to whether the conduct engaged in would be "likely" to "harass the person stalked". Thus proof of either state of mind would support the relevant element of stalking. [52] In this case, the learned Magistrate did not address that issue… 42 An appeal against a conviction for stalking was there set aside and the matter remitted to the Magistrates Court for rehearing. For present purposes, if an allegation as to a contravention of s 35 of the Crimes Act 1900 (ACT) is to be made, the seriousness of the offence dictates a far greater specification of the facts relied upon - including a specification of those facts which could sustain a finding of "intent". The only specification of the facts relied upon is understood to be the following statement in "the act, matters and circumstances relied upon in alleging the action breached s340(1) or (2)" part of the Statement of Claim (without alteration): Ms George engaged in 'stalking' behaviours (defined in the Crimes Act 1900 Act) in monitoring my Twitter account outside working hours, while on leave, for the purposes of assisting in unlawfully terminating my employment. And possibly the following statement (again without alteration): My email communications were reviewed in a level of detail (and monitored - surveillance) beyond that of other staff (this continues to occur). The review was intended to identify material to be used against me (if possible) to bring forward more allegations I had breached the Code of Conduct. This is evidenced in the handwritten notes. Multiple parties participating in this 'surveillance' and with a clear intention to cause me harm and distress. The reference to "monitoring [her] Twitter account" goes some way, but not far enough, in specifying the facts relied upon in support of the allegation against Ms George; left completely unspecified are the facts relied upon to support an allegation as to the commission of the criminal offence of "stalking with intent" on the part of Ms Balmanno, Ms Milner, Ms Frey, Ms Nevins and Ms Mann. As to the latter consideration, and of present relevance, it is difficult to see how (without further explanation) an employee of the Office of the Australian Government Solicitor could fall within s 340 or s 342(1) of the Fair Work Act. 43 It is the lack of specificity in the manner in which claim 20 is expressed, but more by reference to the breadth of the allegations made extending to contraventions of criminal provisions and contraventions by those who do not readily fall within s 340, which dictates that claim 20 should be struck out. Although parts of claim 20 could potentially be struck out so as to leave the balance of a properly formulated claim, such a course has not been taken. It remains a matter for Dr Taylor to form a view as to what the precise claim is that she seeks to advance for resolution. Although the Court can form a view as to whether individual parts of a pleading can be struck out, in circumstances where liberty is to be granted to re-plead, it is a matter for Dr Taylor to identify which claims are to be pressed and which should be abandoned. The Court should not be placed in the position of having to delete parts of a pleading and, in effect, thereby reformulate the claim for resolution - and, in all probability, making the claim different to that which Dr Taylor wants to have resolved. 44 Much the same observations may be made in respect to the other claims the subject of challenge by the Department. 45 Whatever may be the extent to which these claims could be re-drafted, the fact remains that at this stage the claims manifest an unacceptable level of uncertainty as to how Dr Taylor wishes to present her case for resolution. And, in expressing that observation, as was made manifestly apparent throughout her oral submissions, Dr Taylor expressed strong convictions as to the "wrongs" she thought had been brought upon her by the Department and its officers. Considerable hesitation is thus expressed in this Court simply deleting allegations made by Dr Taylor, lest the case remaining be different to the one she sought to have resolved. 46 One claim which warrants separate attention is claim 28. The "Precise description of the action allegedly taken" in respect to claim 28 is expressed in the Statement of Claim as follows (without alteration): The Department has not behaved in accordance with the Model Litigant Rules (making it necessary for me to continue these proceedings to protect myself and my employment). Specifically: - The Department's representatives, and those giving evidence on 25 September 2019, have not been honest. Ms Frey stated she only became aware of the NOI allegations just before signing the document on 9 August: Documentation indicates she was involved in many meetings in the lead-up to my return to work (as early as 31 July 2019) and that the timing was planned. Ms Frey also know of the plan to terminate my employment. Ms Balmanno kept stating the exclusion continued because the Department needed to know how to provide a safe working environment; a decision had been made on 27 March to not return me to the workplace and on 8 April 2019 to terminate my employment under section 23 of the Public Service Act. - The Department didn't respond appropriately to the Notice to Produce before 25 September 2019. The Department subsequently did not come forward as they collected documents of relevant (instead, they gave e >5500 documents on 17 February 2020). - The Department strategized about how to avoid Deputy President Kovacic, of the Fair Work Commission, to not push my application of 3 January 2019 to a Hearing (so nothing would become public). - In the general protections application made to the FWC in late 2019, the Department's representative (Bede Gahan of HWLE and Minter Ellison lawyers) tried to rely on a technical argument to have the matters dismissed: Mr Gahan wrote that the identified parties were not "my employer" for the sake of the applications. - The Department did not make a genuine assessment of their prospects of success. It is clear their assessment included a plan to negatively impact on me to improve their prospects and to avoid this matter being heard. - The Department staff know that my claims are true. The majority can be proven (without reverse onus of proof) based on the production of 17 February. The remaining claims, on the balance of probabilities, considering the provable claims, would all be unlikely to be disproven with the reverse onus of proof and pattern of behaviour of the involved parties. - The Department has taken advantage of me as a claimant lacking resources (time, money, social support and physical health). To fund the administrative support required to bring the case this far, I have been forced to put my car up for sale (I don't have another vehicle and am relying on borrowing a much older car that belongs to my family). I have not had the time resources available to me that the Department has had and this has made completing paperwork almost impossible at times. - The Department seeks to rely on a technical defence (that is not genuine) regarding my exclusion for 14 months. They have repeatedly said it is defensible under s19 of the WHS Act: It is unreasonable to assume that in the presence of repeated medical clearances, any person can be excluded from a workplace for 14 months 'for the purposes of ensuring safety' (particularly when the Department did not act to ensure it had or used appropriate information to inform itself). - Alternative dispute resolution processes have been rejected on multiple occasions. I have repeatedly approach senior staff, Matt Yannopoulos and Glenys Beauchamp, to try and resolve matters without progressing to legal proceedings. I offered for the Department to sign undertakings late in 2019 and to drop this matter. I offered to drop this matter (for the sake of everyone's wellbeing) without any financial penalty to the Department on 13 January 2020. Having read the documents produced on 17 February 2020, it is clear none of these resolution processes are acceptable to the involved parties because their ultimate goal is to terminate my employment. - Another claim outlines the Department's conduct with respect to my ComCare claims. - The Department has sought to stress me financially with strategically sent costs bills for ACD57/2019 (the most recent of which was sent on 4 March 2020). - The production of 17 February 2020, while length, has strategically left out critical information for the case. The orders of 18 December 2019 include for policies relevant in a particular period. The manner in which the policies were 'produced' does not include provision of information I obtained via other means: Particularly, that the Department didn't have a Workplace Consultation Policy for WHS matters until June 2018, and that there was a clause of the miscellaneous leave policy amended just before my exclusion in May 2018 regarding how it could be used for injury management purposes. Similarly, the Department's mental health plan was initially drafted on 23 May 2018 (after they became aware of my suicide attempts in the preceding week). - The Department has claimed legal privilege over documents that they cannot claim legal privilege over. You cannot claim legal privilege if you are covering up unlawful activity (but they tried to). When the Department became aware of this (18 February 2020), they requested the Court order me to destroy that evidence (substantially altering my position to my prejudice). There are many more examples of documents (similar in nature) where the Department states it has claimed privilege yet produced the same material in another document number (unredacted) where they have not claimed privilege over the contents (and where the contents are not able to be covered by legal privilege). - The Department has claimed legal privilege over the contents of some emails sent to me, by them, previously. I do not believe they can claim that those documents were provided for the dominant purpose of seeking legal advice (accepting that I am now a first year law student, I was not when those documents were written, and have several years before I can practice legally). - Destruction of records by Ms Beauchamp, when those would have contained material relevant to this case, is another example of the Respondent not behaving as a model litigant. This also occurred in the context of me writing to the Department to request no notes regarding my employment be destroyed in accordance with the records freeze associated with the Royal Commission into treatment of individuals with disabilities. The mere fact that the Department is continuing with this case, attempting to defend itself, in light of the clear statements of their desire to terminate my employment (and the set up that ensued to try and orchestrate my termination) is a testament to the failure of the Respondent and all involved parties (especially the involved legal representatives) to behave like Model Litigants. Although a like comment could also be made in respect to many of the claims made by Dr Taylor, it is difficult to describe this "precise description of the action allegedly taken" as either "as brief as the nature of the case permits" (as required by r 16.02(1)(b) of the Federal Court Rules) or a statement of "the material facts on which a party relies" (as required by r 16.02(1)(d) of those Rules). But such matters can presently be placed to one side. 47 The substance of the allegation being advanced in claim 28, however it may be expressed, is an allegation that the Department has "not behaved in accordance with the Model Litigant Rules". One initial difficulty with the claim is that the Model Litigant Policy forms part of a direction issued by the Attorney-General pursuant to s 55ZF of the Judiciary Act 1903 (Cth) (the "Judiciary Act"). And that Policy is not enforceable "except by, or upon the application of, the Attorney-General": Judiciary Act, s 55ZG(2). A further difficulty is one confronted by both this claim and other claims (e.g., claims 5, 7, 16, 20, 21, 22, 28, 37, 38 and 39), namely that it makes allegations against employees of the Office of the Australian Government Solicitor. It is difficult to see how such employees could fall within s 340 and/or s 342(1) of the Fair Work Act. 48 Claim 28 should thus be struck out. 49 Tested by reference to these examples, the general thrust of the first of the four broadly described bases of objection raised on behalf of the Department has thus been made out.
Because of 50 The second of the four broadly described bases of objection focussed on claims 8, 26, 28, 31, 32, 33, 36 and 38. 51 The challenge raised by Counsel on behalf of the Department in respect to these claims rested on the proposition that none of the claims contained any allegation that any adverse action was taken "because of" one or other of those reasons set forth in s 340(1)(a) of the Fair Work Act or any allegation that adverse action was taken "to prevent the exercise of a workplace right" for the purposes of s 340(1)(b). Nor, so the submission ran, were any of the factual matters identified by Dr Taylor "capable of establishing that 'adverse action' was taken because of such a reason". 52 Claim 33 has been abandoned. Claim 28 attracted a further discrete ground of challenge. 53 Considerable caution should be exercised in considering whether one or other of these claims should be struck out solely by reason of the absence of a failure to plead that action was taken "because of" a proscribed reason, as required by s 340 of the Fair Work Act. The reason for caution arises because claims 8 and 36 also rely upon an allegation as to a contravention of s 351 of the Fair Work Act. The principal thrust of each of these claims is unquestionably an allegation as to a contravention of s 340; but a claimed contravention of s 351 could potentially survive a strike out application, even though s 351 also prohibits an employer from taking action "because of" that affected person's "disability". 54 Thus, and again by way of example, Dr Taylor provides the following "Precise description of the action allegedly taken" in respect to claim 38: The Department refused to provide material in response to a summons in the AAT appeal of my first ComCare claim over a prolonged period. They impacted on me through distressing actions to the point I had to prioritise protecting my employment over the appeal. The Departmental staff involved in my FWC matter and this matter liaised with the ComCare lawyer (previously a Department of Health lawyer) about matters unrelated to the appeal; including my performance as a self-represented litigant in NCAT, my health information and work history (discussed at NCAT), and other matters relating to me but not to the ComCare Appeal. The combination of these actions was an adverse action and both injured me in my employment and altered my position to my prejudice. Claim 38 goes on to identify "the person/s who took the alleged action" as follows: All involved parties at Department of Health and the AGS lawyers representing them 55 Leaving aside the impermissible uncertainty which arises by reason of the failure to identify "all involved parties" and "the AGS lawyers representing them" and the further difficulty in any "lawyer" employed by the Office of the Australian Government Solicitor falling within s 340 of the Fair Work Act, the submission advanced by Counsel for the Department as to the absence of any allegation that action was taken "because of" a proscribed reason is well founded. 56 The deficiency in the pleading is not, with respect, a mere technicality. Claim 38 is one of those claims alleging solely a contravention of s 340 and not s 351. Both ss 340 and 351, of course, involve a causative element - both sections employ the phrase "because of". If sole reliance is being placed upon s 340, it is necessary to identify which of the proscribed reasons is being relied upon, namely s 340(1)(a)(i), (ii) or (iii) or s 340(1)(b). It would, accordingly, not be sufficient for Dr Taylor to simply add at some place in her pleading the words "because of". And since Dr Taylor does not rely upon s 351 in respect to claim 38, it would not be sufficient to simply add the words "because of her physical or mental disability…". 57 Each of claims 8, 26, 28, 31, 32, 36 and 38 should be struck out on this present basis of challenge.
Scandalous, ambiguous or likely to cause prejudice, embarrassment or delay 58 The third of the four broadly described bases of objection focussed on claims 27, 29, 31, 33, 35, 36 and 38. Claims 29 and 36 rely upon an alleged contravention of s 351 as well as a contravention of s 340 of the Fair Work Act. 59 The challenge raised by Counsel on behalf of the Department was that these claims were "impermissibl[y], ambiguous, vague, high level general conclusions". In framing submissions in terms of ambiguity or embarrassment, reliance was presumably placed by Counsel for the Department upon the power conferred by r 16.02(2)(c) and (d) of the Federal Court Rules. 60 The "great caution" with which the Court should approach an application for striking out a pleading should be constantly borne in mind: cf. Favell [2005] HCA, (2005) 79 ALJR. So, too, should the duties owed by a court to an unrepresented party: Morton v Vouris (1996) 21 ACSR 497 at 513-514. Sackville J there cited with approval the following observations of Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537: … Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill-expressed and unstructured statement of the legal claims sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the court from examining any merits of the case, once the statement of claim is struck out. … On the other hand the Court "must ... have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources" (Corporate Affairs Commission v Solomon (unreported, 1 November 1989, Supreme Court of New South Wales Court of Appeal, Mahoney AP)). 61 Where an amendment may remedy the deficiencies in a pleading which has been struck out, a court will normally permit a party an opportunity to re-plead: Thorpe v Commonwealth of Australia (No 3) (1997) 71 ALJR 767 at 774-775 per Kirby J ("Thorpe"); Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [175], (2007) 232 CLR 245 at 311 per Kirby J (in dissent) ("Channel Seven Adelaide"). 62 Some submissions advanced by the Department were more well-founded than others. 63 Thus, and again by way of example, Dr Taylor's "Precise description of the action allegedly taken" in claim 27 was as follows: Since my return to work in August 2019, the Department has refused to provide a safe working environment. Health practitioners have recommended reasonable adjustments that are not beyond what is reasonably practicable but have not been implemented. Again, this is a claim which it is understood that Counsel on behalf of the Department accepted could potentially constitute "adverse action". The impermissible uncertainty relied upon by the Department it was understood emerged from both: the allegation that the Department has "refused to provide a safe working environment" - without any specification of what Dr Taylor says should have been provided and the manner in which the Department has "refused to provide" that environment; and the broadly expressed allegation that "health practitioners have recommended reasonable adjustments" without any specification of the "health practitioners" to which reference is made and the precise adjustments said to have been recommended. But all such uncertainty could potentially - at least in respect to this Claim - be remedied by a simple request for Particulars. Indeed, it is readily apparent that at least some of those Particulars could be readily provided because Dr Taylor goes on to identify (without alteration) "key adjustments" as follows under "the act, matters and circumstances relied upon in alleging the action breached s 340(1) or (2)": Prior to returning to work on 9 August 2019, the Department repeatedly stated I was excluded so they could ensure that I was provided with a safe working environment. When I returned, I had fewer reasonable adjustments implemented than when I was excluded on 29 May 2018. Key adjustments not provided are: - Light (rectified in late September 2019 after I installed a tenet over my desk) - Provision of psychologically safe workplace - Clarity of work tasks, job role and expectations - Clear instructions regarding workplace behaviour expectations - Workplace autism education for Human Resources staff and Branch colleagues - Clarification around formal directions - Not highlighting me as different and keeping me under increased surveillance - Privacy regarding disability information - Certain IT software programs - Clear induction to work area The Department has had almost five months to find and allocate a mentor; it hasn't happened. 64 The impediment to pursuing such a simple course of seeking Particulars, even assuming the existing statement of "key adjustments" is sufficiently clear, is that difficulty emerges from the further allegations made by Dr Taylor. That difficulty starts with the identification of the persons against whom the allegations are made. Her Statement of Claim identifies these persons as follows: Rachel Balmanno, Tracey Frey, Kylie James, Jodie Grieve, Melissa Hinde, Glenys Beauchamp, Matt Yannopoulos, Hope Peisley, Louise Hawkins, Matt Boyley, Celia Street, Jo Williams-Frew, Susie Irvine, Ashley Arthur, Felicia Nevins, Raoul Salpeter. Rather than confining the net of persons involved in this contravention, Dr Taylor has - rightly or wrongly - cast the net fairly wide. When further addressing "the act, matters and circumstances relied upon", Dr Taylor in her Statement of Claim goes on to state as follows: The Department, and their representatives, are well aware of the impact of not having appropriate adjustments. It has been raised repeatedly. They are also very clearly monitoring for any signs of underperformance or difficulties in coping (while refusing to do what has been recommended). Raoul Salpeter writes in his handwritten note of 4 September 2019 "Is she unravelling": No action was taken to assist, but there are clear indications that the Department is not only not providing a safe working environment to terminate my employment on performance, conduct or health grounds. All the involved parties know I have made public interest disclosures. It is again unclear whether or not "their representatives" is a reference to all or only some of those persons previously identified or is a reference to other unspecified persons. Again, a request for Particulars could potentially remedy this uncertainty. But the need for certainty is an imperative if for no other reason than that the concluding part of the exposition of claim 27 states as follows: the statutory provision/s allegedly breached Public Interests Disclosure Act s. 19 - Reprisal action for making or proposing to make a Public Interest Disclosure. Work Health and Safety Act s.19: Primary duty of care Criminal Code Act 1995 ss274.2 (Part 1 and Part 2): Torture Public Service Act 1999 s. 13: APS Code of Conduct 65 Which of the named persons are alleged to have committed "torture" is unclear. The allegation of "torture" was not a mere flourish on the part of Dr Taylor. During her oral submissions she was quite passionate about her conviction that the conduct she had in mind constituted "torture". Indeed, it was the commitment on her part to the manner in which she sought to advance her claims and her commitment to having this and like issues resolved by the Court, which has led to great hesitation in striking out particular allegations or parts of those allegations as drafted and leaving the balance for resolution. For present purposes, however, the allegation sought to be pleaded is that acts constituted "torture". Section 274.2 of the Criminal Code Act 1995 (Cth) provides as follows: 274.2 Torture (1) A person (the perpetrator) commits an offence if the perpetrator: (a) engages in conduct that inflicts severe physical or mental pain or suffering on a person (the victim); and (b) the conduct is engaged in: (i) for the purpose of obtaining from the victim or from a third person information or a confession; or (ii) for the purpose of punishing the victim for an act which the victim or a third person has committed or is suspected of having committed; or (iii) for the purpose of intimidating or coercing the victim or a third person; or (iv) for a purpose related to a purpose mentioned in subparagraph (i), (ii) or (iii); and (c) the perpetrator engages in the conduct: (i) in the capacity of a public official; or (ii) acting in an official capacity; or (iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity. Penalty: Imprisonment for 20 years. If an allegation of "torture" is to be pressed by Dr Taylor, there needs to be a far greater specification of the facts relied upon than that which presently appears in her Statement of Claim. Again, it is the culmination of such deficiencies in the pleading of claim 27 which dictates the conclusion that it be struck out. 66 It is further considered, and with due respect to Counsel for the Department, a mistake to confine the discretion to strike out parts of Dr Taylor's Statement of Claim to only claims 27, 29, 31, 35, 36 and 38 on the basis that it is those claims alone which expose "ambiguity" or "embarrassment". The moment attention is shifted from the "Precise description of the action allegedly taken" in respect to many of the other claims, and shifted to her identification of "the act, matters and circumstances relied upon in alleging the action breached s 340(1) or (2)", the greater is the concern that many of those other claims are thereby rendered uncertain. On many occasions, much of the factual allegations later set forth by Dr Taylor descend into material having no immediate relevance to any identification of the legal and factual elements necessary to make out a contravention of either s 340 or s 351 of the Fair Work Act. Much of that further material may possibly be evidence of relevance to the making of a claim. But to include such further allegations in a pleading - as opposed to being included in affidavit evidence - has the very real potential to either divert attention from that which is of immediate relevance to a finding of contravention and to provide a platform for further and potentially more irrelevant evidence to be sought to be tendered at a hearing. Attention, with respect, should be directed in Dr Taylor's Statement of Claim to those matters truly in need of resolution, and not diverted to other matters which are either possibly irrelevant or of marginal relevance. To go too far down that latter path would unduly prolong the hearing and allow such matters to "dominate" the proceeding to the potential prejudice of other factual allegations of more immediate relevance: cf. Davis (1986) 68 ALR at 24 per Gibbs CJ.
Allegations as to the commission of offences etc. 67 The final category of claims which it is said should be struck out are identified by reference to para 2.4 of the Interlocutory Application dated 25 March 2020. That paragraph provides as follows: The references to actions of the respondent, or its current or former employees, officers or legal representatives constituting an offence under, or breaching a provision of: 2.4.1. the Disability Discrimination Act 1992 (Cth), in claims, 1b, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 29, 36 and 40; 2.4.2. the Criminal Code Act 1995 (Cth), in claims 5, 26, 27, 28, and 31; 2.4.3. the Crimes Act 1900 (ACT), in claims 20 and 26; 2.4.4. the Work Health and Safety Act 2011 (Cth), in claims 1a, 1b, 2, 10, 12, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 37 and 39; 2.4.5. the Privacy Act 1988 (Cth), in claims 20 and 26; 2.4.6. the Public Service Act 1999 (Cth), in claims 1a, 1b, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39 and 40; 2.4.7. the Australian Human Rights Commission Act 1986 (Cth), in claim 26; 2.4.8. the Human Rights Act 2004 (ACT), in claim 5; 2.4.9. the Telecommunications (Interception and Access) Act 1979, in claim 26; 2.4.10. the Archives Act 1983 (Cth), in claims 28 and 33; 2.4.11. the Safety Rehabilitation and Compensation Act 1988, in claim 38; and 2.4.12. the Public Interest Disclosure Act 2013 (Cth) in claims 20, 21, 22, 23, 24, 26, 27, 28, 31, 32, 33, 34, 35, 37, 39 and 40. 68 Reference has been made to some of the claims in respect to which both this ground of challenge has been invoked together with a separate ground of challenge: e.g., claims 20 and 27. In circumstances where a contravention of a statutory provision has been made, there is an obvious need for specification of those persons against whom the allegation is being made, together with an appropriate identification of those facts and matters which make out a contravention. The Statement of Claim as presently pleaded fails to do so. Nor is it self-evident why such allegations need be made to make out a contravention of either s 340 or s 351 of the Fair Work Act. But Dr Taylor's commitment to making such allegations is manifest from both the manner in which she has carefully drafted her Statement of Claim and from her oral submissions. 69 If further reference need be made to a specific claim not previously addressed, Dr Taylor's "Precise description of the action allegedly taken" of claim 16 was as follows: On 18 October 2018 and 28 June 2019, the Department of Health cancelled my access to the Departmental IT system without cause. On both occasions I had no findings against me regarding misconduct with respect to the system and no history of misusing the IT system while unwell. On both occasions I was not unwell, however, the Department have alleged I was. 70 Claims 16 alleges both a contravention of ss 340 and 351 of the Fair Work Act. And the persons against whom the allegations are made are identified as Ms Balmanno, Ms Cosgrave, Ms Elizabeth Sherwin, Ms Kylie James and Ms Mann. Again there is the recurring difficulty as to how Ms Mann, an employee of the Office of the Australian Government Solicitor, could fall within s 340. Of present concern, the Statement of Claim further identifies the statutory provisions alleged to have been breached as follows (without alteration): Fair Work Act 2009 (Cth) s 351 (disability discrimination) Disability Discrimination Act 1992 (Cth) s 5(1) Work Health and Safely Act s.47 - Duty to consul workers Public Service Act 1999 s.13: APS Code of Conduct When subsequently identifying "the acts, matters and circumstances relied upon in alleging the action breached", Dr Taylor refers exclusively to Ms Balmanno. It remains unclear whether the other persons previously referred to are also claimed to have breached one or other of the statutory provisions mentioned - or whether those persons are alleged to have contravened s 340 of the Fair Work Act and it is Ms Balmanno alone who contravened the other provisions. And whoever is included within the allegations, it remains unclear what facts are relied upon to make good the contraventions. 71 Each of the claims identified in para 2.4 of the Department's Interlocutory Application suffer from comparable deficiencies. Each should be struck out.
A REFERRAL FOR PRO BONO ASSISTANCE 72 Rule 4.12 of the Federal Court Rules provides as follows: Referral for legal assistance (1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9. (2) When making a referral under subrule (1), the Court may take the following matters into account: (a) the means of the party; (b) the capacity of the party to otherwise obtain legal assistance; (c) the nature and complexity of the proceeding; (d) any other matters the Court considers appropriate. (3) The referral certificate may state the kind of legal assistance for which the party has been referred. (4) A Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer. 73 Of the discretion conferred by r 4.12, Barker J in Fuller v Toms [2012] FCA 27, (2012) 247 FCR 440 at 457-458 observed: [92] It may be noticed that the current Rules only relatively recently replaced the former Federal Court Rules 1974 (Cth) (old Rules). Under the old Rules, the Court also had the power to make a referral for legal assistance, but the equivalent rule to current r 4.12(1), namely O 80 r 4(1), qualified the referral power by providing that the Court may make the referral "if it is in the interests of the administration of justice to do so". That qualification no longer exists. [93] It is quite clear therefore that the Court's power to issue a referral certificate is very broad indeed and the observations to this effect made in respect of the former O 80 r 4(1) apply with even more force in relation to the current R 4.12(1): see generally Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] and Rivera v Minister for Home Affairs [2008] FCA (Rivera) at [8]. [94] It should also be noticed that by r 4.13, a party has no right to apply for a referral. This too emphasises the breadth of the Court's discretionary power to control the referral process. That said, there is no difficulty with a party raising the question of referral, as the applicant has here, as a means of initiating the Court's consideration of the exercise of its discretion. [95] Rule 4.12(2) sets out the matters that the Court "may" - not "must" - take into account in deciding whether or not to make a referral… [96] It is clear from the language used in R 4.12(2) that the Court is not limited to a consideration of the particular matters listed, nor required to take any into account, and indeed (d) emphasises that the Court can consider any matter that it considers appropriate. [97] Under the old Rules, it was considered that it would not be appropriate to make a referral "in the interests of the administration of justice" if a case were patently hopeless or there was no arguable basis for it: see Rivera at [8]. While the "interests of the administration of justice" qualification to the exercise of the power has gone in the latest version of the Rules, there is no doubt, in my mind, that the question of a patently hopeless case or one that has no arguable basis, is still a factor that may be taken into account by a Court in deciding to exercise its power to grant a referral certificate, and very often will be considered. But plainly it is not intended to be a controlling criterion, particularly as it is not one that controls the exercise of the discretion created by r 4.12(1). 74 It is concluded that a referral certificate should be issued in the present proceeding. Two factors, in particular, have driven that conclusion, namely: the concern that behind the morass of unnecessary detail presented by Dr Taylor there lurks a claim which, if properly formulated by an experienced legal practitioner, could emerge for resolution; and the fact that, as candidly acknowledged by Dr Taylor, with the present drafting of her claim - even with the assistance of the guidelines properly and helpfully suggested by Griffiths J - the claim remains in an unsatisfactory state. 75 The "proper administration of justice", it is respectfully considered, warrants the issue of the referral certificate.
A RELEASE FROM THE UNDERTAKING 76 The undertaking proffered in the interlocutory hearing before Griffiths J was noted by the Court in the following terms (without alteration): THE COURT NOTES THAT: 1. The respondent makes the following undertaking: Until the hearing and determination of proceedings ACD 56 of 2019, or further order, the Commonwealth of Australia (as represented by the Department of Health), undertakes: 1. Not to make a formal determination that the Applicant has committed a breach of the Australian Public Service Code of Conduct in relation to the allegations set out in the following: a. notice of investigation into an alleged breach of the APS Code of Conduct dated 2 May 2019, as amended on 19 June 2019; and b. notice of investigation into alleged breaches of the APS Code of Conduct dated 9 August 2019. 2. To suspend the directions issued to the applicant in the email from Macushla Cosgrave sent on 9 April 2019. 3. To suspend the directions numbered 2, 3 and 4 issued to the applicant in a letter from Ms Rachel Balm an no dated 10 July 2019. Date: 26 September 2019 IT IS NOTED THAT: The terms of this undertaking have been brought to the attention of the following persons who each confirm they understand its terms. a. Glenys Beauchamp, Secretary, Department of Health b. Matthew Yannopoulos, Chief Operating Officer & Deputy Secretary, Corporate Operations, Department of Health c. Mark Roddam, First Assistant Secretary, Mental Health Division, Department of Health (the appointed decision maker in relation to the notices of investigation referred to in paragraphs 1 ( a) and (b) above), d. Rachel Balmanno, First Assistant Secretary, People, Communication and Parliamentary Division, Department of Health. … 77 If released from the undertaking dated 26 September 2019, the Respondent is prepared to give a further undertaking that it will not terminate Dr Taylor's employment without giving her 21 days' prior notice. 78 Upon the Respondent giving this undertaking, it is concluded that the Respondent should be released from the former undertaking given on 26 September 2019. This conclusion is reached because: the 26 September 2019 undertaking was proffered in the expectation that the final hearing would take place in the reasonably foreseeable future - the present position being that no final hearing could be expected to take place at the very earliest prior to the end of the calendar year 2020; the subject matter of the "investigations" sought to be carried out by the Department, extending as they do to alleged contraventions by Dr Taylor of directions given to her and contraventions of the APS Code of Conduct, are matters which warrant "investigation" and raise matters fundamentally going to the discharge by Dr Taylor of her responsibilities as an employee; the procedures to be followed in pursuing any further investigation that may be outstanding are procedurally fair and provide Dr Taylor with a full and proper opportunity to advance her responses to the matters the subject of investigation; and the most appropriate decision-maker to resolve the matters (at least initially) sought to be investigated by the Department is the person described as the "Breach Decision Maker". 79 Although it must be recognised that the Department's release from the September 2019 undertaking will in all likelihood occasion Dr Taylor further distress, the balance nevertheless lies in favour of releasing the Department. Any hesitation in releasing the Department from its undertaking is, at least in part, addressed by the Department: proffering the new undertaking. The balance lies in favour of releasing the Department from its September 2019 undertaking: notwithstanding the concern that lurking behind the morass of detail provided by Dr Taylor is the potential for a properly formulated claim of adverse action to emerge.
CONCLUSIONS 80 It is thus concluded that the entirety of the Statement of Claim should be struck out. Although it would be possible to identify individual paragraphs which would be susceptible of amendment, either by the addition of some further allegations or by the deletion of some of the existing drafting, to do so may well be to advance a claim that is fundamentally different to the claim that it is understood Dr Taylor wishes to advance for resolution. And some of the claims which could be struck out without any amendment are understood to be claims fundamental to the concerns of Dr Taylor. 81 To strike out individual claims, but to possibly leave the rest, would in all probability present a very different case to the one Dr Taylor seeks to have resolved. And many of the claims are inextricably linked one to the other. 82 Overall, it has been concluded that the Statement of Claim as presently formulated is so ill-expressed that it would confront both the Department and the Court with the difficult task of trying to piece together, from one or other of the claims, a potentially different series of claims which could give rise to a claim for relief. No respondent should be placed in the positon of attempting to defend a claim which is not presently formulated with sufficient certainty, such that it can identify the legal and factual issues to be addressed. Left as it is, the Statement of Claim has impermissibly "planted" a series of allegations containing a morass of factual detail - some of which appears irrelevant to the central issues to be resolved - confronting both the Department and the Court with the prospect that the legal and factual issues to be resolved would only emerge (if at all) in final submissions: cf. Forrest [2012] HCA at [27], (2012) 127 CLR at 503 per French CJ, Gummow, Hayne and Kiefel JJ. 83 A further matter of not inconsiderable concern is the further conclusion that the Statement of Claim as presently drafted sets forth a myriad of diverse factual allegations which divert attention away from the legal and factual elements necessary to make out a contravention of s 340 and/or s 351 of the Fair Work Act. Of present relevance is the conclusion that the inclusion of apparently irrelevant allegations in the Statement of Claim leaves the Respondent in the position that it would not know which allegations needed to be addressed by evidence and which did not. Concern may be expressed as to whether a comparatively simple case has been rendered unnecessarily complex by reason of an attempt to include irrelevant allegations. 84 In very broad terms, Dr Taylor contends that adverse action has been taken against her by reason of her disabilities. The contention is that the Department has systematically bullied her and taken action against her which it would never have taken against other employees. Such action, she contends, falls foul of both ss 340 and 351 of the Fair Work Act. The difficulties which she faces by reason of her disabilities, she contends, are readily susceptible of being addressed by the Department. Separate from her complaints previously agitated before Griffiths J that such action also falls within the Disability Discrimination Act, she contends that her claims also fall foul of the Fair Work Act. 85 Liberty should be granted to re-plead: cf. Thorpe (1997) 71 ALJR; Channel Seven Adelaide [2007] HCA, (2007) 232 CLR. 86 A not inconsiderable difficulty which she may well face, and as recognised by Griffiths J ([2019] FCA 1587 at [19] and [24] to [26]), is the reliance which the Department will inevitably place upon s 342(3) of the Fair Work Act and the submission already foreshadowed that at least some of its actions were "authorised by or under … any other law of the Commonwealth… or… a law of a State or Territory…". But that difficulty will only need to be confronted once there has been a properly drafted Statement of Claim. 87 A difficulty confronting many unrepresented litigants, especially those with disabilities as here, is that the task of drafting a Statement of Claim proves to be well beyond their abilities: e.g., Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687. That which is disturbing is that the facts as so far exposed by Dr Taylor raise the prospect that a properly drafted Statement of Claim could expose the Department to potential contraventions of the Fair Work Act which should proceed to hearing and be resolved on their merits. It is thus proposed that a referral certificate issue in respect to Dr Taylor, or short of a Pro Bono lawyer being appointed, that Dr Taylor be granted liberty to apply for leave to file a Further Amended Statement of Claim certified by a lawyer in accordance with r 16.01 of the Federal Court Rules. 88 As presently drafted, the Statement of Claim should be struck out in its entirety. But there should be liberty to re-plead, but not so as to include either: the making of any claim which falls within s 46PO of the Human Rights Commission Act 1986 (Cth); or a claim seeking to enforce the Model Litigant Policy: Judiciary Act, s 55ZG(2). 89 Upon the Department giving the undertaking proffered in its written Outline of Submissions dated 25 March 2020, the Department is released from the undertaking given in September 2019. 90 The imperative of properly drafting the claims sought to be advanced cannot be underestimated. Although claims have been amended and new claims added since the matter was before Griffiths J in September 2019, there forever remains the prospect that - unless properly redrafted - any future application for interlocutory relief, should a decision be made to terminate Dr Taylor's employment, would meet with little (if any) success. 91 Although it is no part of the function of this Court to intrude into any mediation of the present dispute, in the absence of explanation, it is disappointing and surprising that the Department has not been able to properly address and resolve the concerns of Dr Taylor. 92 It should be noted that after judgment was reserved the Court became aware of a proposal on the part of the Applicant to file a further Interlocutory Application. On 22 September 2020, the matter was relisted and the Applicant confirmed that no Interlocutory Application had in fact been filed by her after judgment had been reserved, and the Respondent confirmed that no Interlocutory Application had in fact been served. The parties were advised that judgment would be delivered on 24 September 2020. Intervening, on 23 September 2020, the Applicant sought to file a further Interlocutory Application. The Registry was directed not to accept that Interlocutory Application for filing. The Applicant had had every opportunity since judgment was reserved on 23 June 2020 to file any Interlocutory Application at a far earlier point of time. It was considered too late to file the Interlocutory Application the day before the judgment.
THE ORDERS OF THE COURT ARE:
Taylor
Department of Health
[2009] ACTSC 39
(2009) 256 ALR 458
(1990) 169 CLR 279
(2013) 219 FCR 245
(2012) 248 CLR 500
(2017) 256 FCR 306
(2007) 232 CLR 245
(1986) 68 ALR 18
(2005) 79 ALJR 1716
(2012) 247 CLR 486
(2012) 247 FCR 440
(2012) 208 FCR 178
(1997) 71 ALJR 767
(1986) 6 NSWLR 534
(1998) 195 CLR 1
(2006) 160 IR 1
(2008) 175 IR 320
(2012) 202 FCR 244
(1976) 51 ALJR 235
(2004) 184 FLR 53
(2005) 191 FLR 332