FEDERAL COURT OF AUSTRALIA Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) [2016] FCA 716 File number(s): SAD 80 of 2015 Judge(s): CHARLESWORTH J Date of judgment: 16 June 2016 Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 469.5 Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Beach Petroleum NL v Johnson (1993) 43 FCR 1 Date of hearing: 10 June 2016 Registry: South Australia Division: General Division National Practice Area: Employment and Industrial Relations Number of paragraphs: 29 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents Mr B Roberts SC Solicitor for the Respondents: NDA Law ORDERS SAD 80 of 2015 BETWEEN: ALEXANDRA JANE WALSH Applicant AND: UMOONA TJUTAGKU HEALTH SERVICE ABORIGINAL CORPORATION (ICN 7460) First Respondent PRISCILLA MAGDALENE LARKINS Second Respondent JUDGE: CHARLESWORTH J DATE OF ORDER: 16 JUNE 2016 THE COURT ORDERS THAT: 1. Subparagraph 18(h) of the third statement of claim is struck out. 2. The applicant has leave to file a fourth statement of claim incorporating the following: (a) the amendments foreshadowed in the opening words to paragraph 18 of Exhibit A, except for the words "and Officers of the first respondent and their family"; (b) the amendments foreshadowed in subparagraphs 18(b), (p), (q), (w) and (ff) of Exhibit A; (c) the insertion of the words "including by victimising her husband" after the word "Applicant" in the opening words to paragraph 19. 3. The applicant is to pay the respondents' costs of and incidental to her interlocutory application of 3 June 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J: 1 On 10 June 2016 I dismissed, in part, an interlocutory application filed by the applicant in these proceedings on 3 June 2016. I delivered ex tempore reasons for my judgment. These are my edited reasons. 2 The applicant, Ms Walsh, alleges that the respondents are liable to compensate her for losses allegedly suffered as a consequence of acts of victimisation directed against her in contravention of s 469.5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). 3 The originating application was filed on 15 April 2015. An amended statement of claim was filed on 1 July 2015 and a third statement of claim was filed on 4 November 2015. By an interlocutory application dated 3 June 2016, the applicant seeks leave to file a fourth amended statement of claim. The amendments contain additional particulars to paragraphs 18 and 19 of the pleading. A document containing the proposed amendments was handed up by Ms Walsh at the hearing of her application. It is marked Exhibit A. Paragraph 18 4 Paragraph 18 of the third statement of claim states: 18. Since the Applicant's termination on 20 April 2012, she has been subjected to further victimisation and harassment from Mrs Larkins and her family ('Subsequent Victimisation') (a) Mrs Larkin's husband is on the Board of Directors of UTHSAC and is also a senior policeman at Coober Pedy. (b) On or around 15 October 2012, the Applicant's husband was arrested by SAPOL on warrants that were invalid and outdated. (c) On or around 15 October 2012, in a roadhouse store, Mrs Larkins approached the Applicant at close quarters and said 'I'm going to get your husband killed in jail' and stood laughing at her. (d) The Applicant's husband's arrest warrants were subsequently dismissed. (e) On 13 April 2012, Mrs Larkins' husband parked his car adjacent to the Applicant's house and stared at the house for an extended period of time in an intimidating manner. (f) On 4 September 2012, Mrs Larkins tailgated the Applicant, overtook her car and 'slammed on' the brakes in front of her car in an intimidating manner. (g) On 22 March 2013, Mrs Larkins' son and girlfriend confronted the Applicant and her husband in a local supermarket and asked the latter 'if he had a problem' in an intimidating manner, then, later when driving home, Mrs Larkins drove towards the Applicant in her car and made an insulting gesture towards her out of her car window. (h) Similar occurrences of intimidation by Mrs Larkins occurred periodically on occasions which the Applicant can no longer precisely remember. 5 Exhibit A contains a new proposed paragraph 18, with 70 subparagraphs numbered 18(a) through to 18(rrr). The proposed amendments include allegations of conduct by two persons not named as parties in the action. 6 I have given particular attention to paragraph 18(h) of the current iteration of the pleading. It was introduced as a particular to paragraph 18 on 15 December 2015. Subparagraph 18(h) asserts as a fact that Ms Walsh has no recollection of further incidents of victimisation that might be pleaded in support of the allegation made in the opening words to paragraph 18. Ms Walsh has frankly and properly acknowledged to me today that subparagraph 18(h) is not a true statement in that, she says, she has at all times been able to recall other alleged acts that might be particularised at paragraph 18. 7 Ms Walsh now seeks leave to amend the particulars to paragraph 18 so as to introduce a large number of substantive allegations of victimisation alleged to have been perpetrated against her by the respondents or persons said to be acting on their behalf. It is convenient to deal with the proposed amendments by grouping them into three categories: (a) allegations of events that occurred before the third statement of claim was filed, that is, prior to 4 November 2015; (b) allegations of events occurring after that date; and (c) particulars of other events that do not amount to allegations of victimisation but that nonetheless give some chronological context to the remaining particulars. 8 Ms Walsh is presently a self-represented litigant. I take that circumstance into account and give it considerable weight in determining her application, particularly when considering complaints by the respondent that the proposed amended pleading is bad in form. The solicitors who had previously acted for Ms Walsh were not in attendance at the hearing of her application. 9 Ms Walsh has been a self-represented litigant since terminating the services of her previous solicitors. That appears to have occurred in around January 2016. She was legally represented at the time that the proceedings commenced and at the time of the filing of the two further iterations of her pleading on 1 July and 4 November 2015. 10 In her supporting affidavit, Ms Walsh deposes to having constantly apprised her former solicitors of all of the details of the acts of victimisation that she sought to include in the subject matter of these proceedings. Correspondence to that effect is annexed to an affidavit filed in support of her application. In addition, she deposes to having reported subsequent and ongoing acts of victimisation to the police and to the Police Ombudsman. 11 In her affidavit, the applicant states (original spelling and grammar retained): [18] I questioned my Lawyer … verbally why Patrick Larkins was still the only Director of the Board to be referred to in paragraph 18 of the Third Statement of Claim, 'Subsequent Victimisation'. [19] I gave clear verbal instructions to my Lawyer … that I wanted all of the harassment and victimisation directed toward me and my husband to be included in my claim. I was advised by… [the lawyer] that it would be more prudent that it be used at trial and not to disclose all my evidence at once. 12 This evidence was not challenged by the respondents. Assuming (without deciding) the evidence to be true, the characterisation by Ms Walsh's then solicitors of the additional allegations as "evidence" is, I find, a wrong one. The allegations are, I find, allegations that could have and ought to have been pleaded earlier, either as particulars to paragraph 18 or elsewhere in the statement of claim. At paragraph 26 of her affidavit, Ms Walsh states: [26] While I started to prepare the further information that the Respondents Lawyers wanted I started to realise that my Third Statement of Claim did not identify all of the parties involved or show how bad the Subsequent Victimisation was and still is. 13 It was submitted on behalf of the respondents that that paragraph is inconsistent with what Ms Walsh says in paragraphs 18 to 19 of her affidavit. 14 I do not consider it necessary or appropriate to make any finding as to whether Ms Walsh herself has misled the Court previously or as to whether she personally has adopted a particular strategy in the conduct of the litigation at least up to the filing of the third statement of claim. However, I do find that the solicitors acting on behalf of Ms Walsh were fully apprised at all times of additional facts of victimisation that could form and should form the basis of further particulars to paragraph 18 of the statement of claim. I find that there has, indeed, been a strategic decision made by solicitors acting for and on behalf of Ms Walsh not to include the further acts of victimisation at an earlier time. The decision was made by solicitors acting in their capacity as agent for Ms Walsh and she is bound by their actions now, just as she would be if they presently continued to act for her in the proceedings. For those reasons, I will not grant leave to introduce new particulars to the claim containing allegations of events occurring at any time prior to the filing of the third statement of claim. Those paragraphs are, by reference to Exhibit A, subparagraphs 18(e), (f), (g), (h), (i), (k), (o), (s), (t), (u), (z), (aa), (bb), (dd), (gg), (hh), (jj), (ll), (nn), (oo), (qq), (rr), (ss), (tt), (uu), (vv), (xx), (yy), (zz), (bbb), (ccc), (ddd), (eee), (fff) and (ggg). 15 In not permitting the introduction of those proposed paragraphs, I have taken into account the proximity of the trial date. The trial commences on 27 June 2016. The subject matter to be traversed at the trial is already significant, and the conduct of the trial will be compressed and difficult, having regard to Ms Walsh's status as a self-represented litigant, although I mean no personal criticism directed at Ms Walsh in that regard. If the new material were to be introduced at this late stage, it would have been necessary to vacate the trial dates. In the circumstances I have described, the desirability of avoiding an adjournment is to be given considerable weight, even if the respondents were to have the benefit of an order as to costs: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [98]: Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. 16 I turn now to those allegations sought to be introduced that relate to events that postdate the third statement of claim. I accept that Ms Walsh seeks to introduce in the trial of these proceedings allegations of victimisation that she says are ongoing. In determining this aspect of the application, I take into account the nature and subject matter of the proceedings, being a substantive allegation of harassment and victimisation that is said to be continuing in fact that circumstance weighs in favour of a grant of leave. 17 However, I accept submissions made on behalf of the respondents that the pleadings in this respect are lacking in proper form. Specifically, the proposed particulars lack what I will informally call "connective tissue" so as to make it clear on the face of the pleading the precise basis upon which it is said that the alleged conduct of two additional persons, that is, Senior Community Constables Warrior and Walker is attributable, as a question of fact and law, to either or both of the first and second respondents. 18 In Beach Petroleum NL v Johnson (1993) 43 FCR 1, von Doussa J summarised the principles to be applied in ascertaining whether a body corporate is liable in law for the acts of its employees, officers or agents. His Honour, after surveying the authorities, said (at 31): These authorities indicate that, if a company is to be imputed with the conduct and knowledge of a director, the director must be acting within the scope of his or her authority, that is, within the scope of his or her actual or apparent authority. The scope of the authority of a director may vary widely from company to company and according to the circumstances of the case. 19 An applicant who seeks to attribute the conduct of an individual to another entity should plead clear particulars of the facts upon which the party relies in so attributing the conduct. The particulars sought to be introduced by Ms Walsh make allegations of conduct against persons who have relatively recently become directors of the first respondent, but does not include any pleading as to how it is that the first respondent is said to be liable in law for that conduct. 20 Even if the pleading did include necessary particulars as to those issues, I am not satisfied that the trial dates listed would not have to be vacated if that subject matter were now introduced. In so finding, I take into account the matters to be proven by Ms Walsh and to be rebutted by the respondents, and the witnesses that would necessarily need to be called to address the issues at trial, assuming the issues could be pleaded in proper form in sufficient time. 21 I do not grant leave to Ms Walsh to make the amendments foreshadowed in subparagraphs 18(iii), (jjj), (kkk), (lll), (mmm), (ooo), (ppp) and (qqq) of the Exhibit A. 22 As I have mentioned, other amendments sought to be made are intended by Ms Walsh to be chronological markers in a narrative; a long narrative represented by the new proposed particulars of paragraph 18 as a whole. I do not permit the introduction of those paragraphs for the reason that they are just that: intended only to be chronological markers putting the remaining particulars into chronological context. It would be open to Ms Walsh at trial to adduce evidence of relevant and necessary chronological events so as to put her pleaded allegations into some context in time or place. It is not necessary that they be pleaded. Accordingly, I will not grant leave to introduce the amendments foreshadowed in Exhibit A at subparagraphs 18(d), (j), (m), (n), (k), (r), (y), (ee), (ii), (kk), (mm), (pp), (ww), (aaa), (hhh) and (nnn). 23 I will not grant Ms Walsh leave to amend subparagraph 18(a) of the pleading because that proposed amendment depended upon the success of her application to introduce other amendments concerning the conduct of persons not joined as parties in the proceedings. Ms Walsh abandoned her application insofar as it concerned the proposed amendments contained in paragraph 18(c), (cc) and (vv). 24 I do grant Ms Walsh leave to file a fourth statement of claim that includes the following amendments, again expressed by reference to Exhibit A: (a) the opening words to the proposed new paragraph 18, except for the words contained in the third line, "and officers of the first respondent and their family"; and (b) new or amended paragraphs in terms of subparagraphs 18(b), (p) and (w). 25 However, I will not allow the fourth statement of claim to include a paragraph in terms of the current subparagraph 18(h). Paragraph 18(h) of the third statement of claim should be struck out having regard to Ms Walsh's concession to me today that the allegation pleaded there is not correct. Paragraph 19 26 Paragraph 19 of the third statement of claim pleads the state of mind alleged to accompany the acts of "Subsequent Victimisation" as that phrase is defined in the opening words to paragraph 18. As I have not permitted the introduction of any new substantive allegations of victimisation to be particularised in paragraph 18, I find that the proposed amendments to paragraph 19 contained in Exhibit A would be otiose. Further, some of the proposed new paragraphs are not in the nature of particulars to paragraph 19: they are new substantive allegations. 27 I make one qualification to that finding, and that is that Ms Walsh has, in the proposed new paragraph 19, referred to detriment being caused to the applicant and her husband. I find that Ms Walsh intends to claim in the action that victimisation suffered by her husband ought be regarded in law as being victimisation that is suffered by her. She may or may not succeed in that contention, but that is how I understand she proposes to run her case, having regard to the submissions made in support of this application. In this regard I note that paragraph 18 of the third statement of claim already contains allegations that the applicant's husband has been the object of alleged acts of victimisation. The respondents have made no application to strike out those particulars. 28 I will grant Ms Walsh leave to amend the introductory words in paragraph 19 of the pleading, if she so chooses, by inserting the words "including by victimising her husband" after the word "Applicant" in the opening words to paragraph 19. That amendment will clarify the case that the respondents are to meet when answering the applicant's claim as to loss. 29 Having heard the parties as to costs, I consider it appropriate that the applicant pay the respondents' costs of and incidental to her interlocutory application dated 3 June 2016. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate: Dated: 16 June 2016