FEDERAL COURT OF AUSTRALIA

Taj v Western Health (No 3) [2014] FCA 781

THE COURT ORDERS THAT:

1.    The Amended Statement of Claim dated 8 May 2014 be struck out.

2.    The First Respondent’s interlocutory application of 28 May 2014 and the Second Respondent’s interlocutory application of 26 May 2014 be otherwise dismissed.

3.    The Applicant pay the costs of and incidental to the First Respondent’s and Second Respondent’s interlocutory applications.

4.    The Applicant have leave to file and serve a Further Amended Statement of Claim on or before 19 September 2014.

5.    Should the Applicant not file and serve a Further Amended Statement of Claim in compliance with Order 4, the Applicant’s Originating Application be dismissed.

6.    Should the Applicant file and serve a Further Amended Statement of Claim in accordance with Order 4, the matter be listed for a further directions hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

1    I have before me two interlocutory applications. The first, dated 26 May 2014, is an application by the second respondent seeking interlocutory orders striking out the applicant’s Amended Statement of Claim filed 8 May 2014. The second interlocutory application, dated 28 May 2014, is brought by the first respondent and seeks that summary judgment be given against the applicant in favour of the first respondent because it is contended the applicant has no reasonable prospect of successfully prosecuting the proceeding as the Amended Statement of Claim filed on 8 May 2014 discloses no reasonable cause of action. Alternatively, the first respondent seeks an order that the Amended Statement of Claim be struck out.

2    This proceeding has a long and unfortunate history. Initially, the applicant was represented by lawyers. The originating application dated 24 October 2013 claimed that the respondents had engaged in adverse action against the applicant, had engaged in discrimination against the applicant and had breached the applicant’s employment contract. The originating application relied on ss 340, 351 and 352 of the Fair Work Act 2009 (Cth) (Fair Work Act). A Statement of Claim was filed by the applicant on 22 January 2014.

3    An order was made on 6 February 2014 that the applicant file and serve an Amended Statement of Claim. On 21 February 2014, an Amended Statement of Claim dated 22 January 2014 was filed. On 18 March 2014, the solicitors who had acted for the applicant filed a notice of ceasing to act. On 19 March 2014, the Court made a number of orders including an order that the Amended Statement of Claim of 21 February 2014 be struck out. That order was made on the interlocutory applications made by each of the respondents seeking that result. An order was also made giving the applicant leave to file a Further Amended Statement of Claim on or before 9 May 2014. Further consequential orders were made which I need not refer to now.

4     On 8 May 2014, the applicant (now representing himself) filed a document headed “Amended Statement of Claim”. The heading to the document refers only to the second respondent. However, I accept that is an error and that the Amended Statement of Claim is also intended to address the conduct of the first respondent. It is that Amended Statement of Claim which is the subject of the interlocutory applications before me today. I should add for the sake of completeness that the Court published reasons which explain the orders made on 19 March 2014 striking out the Amended Statement of Claim of 21 February 2014. Those reasons for judgment are published as Taj v Western Health (No 2) [2014] FCA 339.

5    The primary purpose of a pleading is to enable the other party or parties to the proceeding to properly understand the case that the other party or parties have to meet. There is no doubt in my mind that the applicant’s Amended Statement of Claim of 8 May 2014 fails to meet that primary purpose.

6    Whilst it is not abundantly clear from the pleading, the applicant contended that the first five paragraphs of the pleading are directed to the second respondent. The first of those allegations is headed “Violation of Hospital’s Written Policies & Code of Conduct”. There is a single paragraph which addresses that allegation. The applicant asserted that the paragraph alleged a breach of his contract of employment with the second respondent. As I understood him, he seeks to make out a case that his contract required that he be given two written warnings prior to any right existing in the second respondent to terminate that contract.

7    However, the pleading relied upon does not identify an employment contract let alone identify the particular terms of any employment contract relied upon. The pleading also refers to policies and a code of conduct. It fails to identify what particular policies, what particular code of conduct, and what particular provisions in those documents are relied upon. It also fails to identify how those policies and code of conduct form part of any contract of employment. The pleading is manifestly inadequate.

8    Paragraph 2 of the Amended Statement of Claim is headed “Violation of My signed contract with St John Of God Hospital”. There is a single paragraph in relation to that allegation which the applicant contended was directed to the second respondent. The applicant asserted that it was a term of his contract of employment with the second respondent that his out of pocket expenses be paid. He asserted that there were travelling expenses which should have been, but have not been, paid.

9    However, as with paragraph 1, the pleading fails to identify either the contract or the particular terms of the contract relied upon. Further, it fails to identify the nature and extent of the expenses in question. It is manifestly inadequate and does not give the second respondent the capacity to understand the case that it needs to meet.

10    The third paragraph of the Amended Statement of Claim is headed “Violation of Common employment law”. This part of the pleading, so the applicant asserted, seeks to rely on s 352 of the Fair Work Act and seeks to allege that in contravention of that provision, the applicant was dismissed because he was temporarily absent from work because of an illness or injury. However, the pleading fails to refer to s 352, fails to allege that the applicant’s dismissal was because he was temporarily absent from work because of an illness or injury and fails to identify (in the terms required by s 352) how it is that the illness or injury said to have been suffered was of a kind prescribed by the relevant regulations. That pleading is also manifestly inadequate.

11    The fourth paragraph of the Amended Statement of Claim is headed “Bullying by the Supervisor Dr Brett knight during the 4 Months I Served”. It is not clear from the pleading what cause of action is here being relied upon, and in his oral submissions, the applicant could not identify a breach of any law that he sought to complain about. Again, this paragraph is manifestly inadequate.

12    The fifth paragraph in the amended statement of claim is headed “Damage to career and Character deformation [sic] by Dr knight”. The pleading suggests that a complaint is being made about the second respondent discrediting the applicant’s character. However, neither the pleading nor the oral submissions of the applicant have identified what cause of action is here being relied upon. That paragraph is also manifestly inadequate.

13    The applicant informed the Court that the remaining paragraphs are intended to be directed to the first respondent. It follows, therefore, that the second respondent has established that those parts of the applicant’s Amended Statement of Claim filed 8 May 2014 that relate to it should be struck out. I will make an order to that effect.

14    The allegations made against the first respondent in the Amended Statement of Claim are set out on the second page of that document, which has been misnumbered “page 3”. There are four paragraphs on that page. The numbering on that page oddly commences with paragraph 2. A further allegation is contained in a paragraph numbered 3 and the last allegation is contained in two paragraphs under the number 4.

15    The allegation under paragraph 2, although not clear, is as the applicant informed the Court, an allegation intended to be made against the first respondent. The applicant asserted that what he was seeking to allege was a breach of a Victorian Act which the pleading identifies as the Health Professionals Act 2005 [No Act of that name exists but this may be an intended reference to the Health Professions Registrations Act 2005 (Vic)].

16    The pleading asserts that the applicant’s category under s 7(1)(d)(1) of that named Act was changed without his consent or knowledge. The pleading does not identify what obligation, if any, the first respondent had under s 7(1)(d)(i) of the Act named nor does the pleading identify how it is that the change of the applicant’s category was a breach of the provision asserted. The applicant was unable to explain any of those matters in his oral submissions. The pleading is manifestly inadequate and in my view, ought to be struck out.

17    The paragraph numbered 3 on page 3 complains that the applicant was sent to Ballarat against his wishes without being allowed to finish his six month term. Whilst again not clear, the applicant informed the Court that this was an allegation made against the first respondent. It was said that the breach concerned a breach of the Fair Work Act. There is no reference in the pleading to the Fair Work Act in relation to this allegation. The applicant was not able, in his submissions, to identify what particular section of the Fair Work Act the pleading sought to rely upon. Again, the paragraph in question is manifestly inadequate in informing the first respondent of the case that it needs to meet.

18    The final two paragraphs on page 3 include an allegation of bullying and also an allegation that the applicant was wrongly ordered to go and obtain a letter of clearance from the Victorian Doctor’s Health Professionals, an organisation which is said to deal with doctors suffering from mental health and substance abuse problems.

19    In his oral submissions, the applicant stated that these allegations were addressed again to the first respondent and sought to agitate a breach of the applicant’s contract of employment with the first respondent. There is nothing in the pleading which would indicate to the first respondents what aspect of the contract of employment was being relied upon and how the conduct identified is said to be in breach of any particular provision of that contract. Again, I consider these paragraphs to be manifestly inadequate in providing the first respondent with the understanding it is entitled to have as to the case which it must meet at trial.

20    The deficiencies in the pleading against the first respondent which I have identified clearly make out the alternative basis for relief sought by the first respondent, namely that the Amended Statement of Claim should be struck out. I am willing to make an order to that effect. I am not however willing to accede to the primary relief sought by the first respondent that the applicant’s application as against it be summarily dismissed for failing to disclose a reasonable cause of action.

21    As the authorities have made clear, summary judgment is not readily granted. The Court should be slow to give judgment without a trial except in an obvious case. It seems to me that the difficulties which I have referred to above may have more to do with the applicant’s inability to plead his claim rather than be demonstrative of the non-existence of a reasonable cause of action.

22    That seems to me to be particularly so in relation to what is asserted to be the breach of contract of employment claim made against the first respondent.

23    There may well be no reasonable cause of action in relation to the claim sought to be brought under the Health Professions Registration Act 2005. However, my understanding of what the applicant really seeks to assert in this respect is limited and at this stage, given that I do not intend to make an order for summary dismissal of all of the claims made against the first respondent, I see no advantage in an order for the summary dismissal of that claim alone.

24    I should say, however, that I am most sympathetic to the position that both respondents find themselves in. The applicant has now had a number of opportunities to plead the causes of action which he seeks to rely upon. The fact that he is unrepresented may serve to explain many of the difficulties which he has encountered, but at the end of the day, that does not excuse the applicant from setting out in a pleading the case which the respondents are faced with and which they will need to meet at trial. There will, it seems to me, come a point in time (and that time is potentially not too far away), where a further unsuccessful attempt by the applicant to plead his case will result in the Court being satisfied that his failure to identify a reasonable cause of action is not the consequence of a pleading deficiency, but demonstrative of the fact that no reasonable cause of action actually exists.

25    I will make an order striking out the Amended Statement of Claim of 8 May 2014 and consequential orders.

Associate:

Dated:    28 July 2014