APPLICATION FOR AN ORDER IN RELATION TO ENGAGING IN OR INDUCING DISCRIMINATORY OR COERCIVE CONDUCT PURSUANT TO SECTION 112 OF THE WORK HEALTH AND SAFETY ACT 2020 THE WORK HEALTH AND SAFETY TRIBUNAL CITATION : 2024 WAIRC 00180 CORAM : Commissioner T Emmanuel HEARD : ON THE PAPERS DELIVERED : TUesday, 23 April 2024 FILE NO. : WHST 8 OF 2023 BETWEEN : Justin Simmonds Applicant AND Electricity Networks Corporation t/a Western Power Respondent CatchWords : Work Health and Safety Tribunal – applications for leave to amend earlier amended application and witness statement – respondent opposes the applications – applications for leave refused Legislation : Industrial Relations Act 1979 (WA) s 26(1), s 27 Work Health and Safety Act 2020 (WA) cl 29 of Sch 1 Result : Applications dismissed Representation: Counsel: Applicant : On his own behalf Respondent : Mr G Giorgi (of counsel) Cases referred to in reasons: Civil Service Association of Western Australia Incorporated v Director General as the employing authority, Department of Justice [2023] WAIRC 00793; (2023) 103 WAIG 1715 Consolidated Pastoral Company Pty Ltd; Hancock Prospecting Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00101 === REASONS FOR DECISION === ¶1 Mr Simmonds filed an application to the Work Health and Safety Tribunal (Tribunal) under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act). The Tribunal has made programming orders and the matter is set down for hearing next month. ¶2 Mr Simmonds filed applications for leave to amend his application and replace his witness statement (Applications). In effect, he says he wants to introduce new allegations. ¶3 Electricity Networks Corporation trading as Western Power (Western Power) opposes the Applications and asks the Tribunal to dismiss them. Question to be answered ¶4 The Tribunal must decide whether to grant leave for Mr Simmonds to amend his application and replace his witness statement. Should the Tribunal grant leave for Mr Simmonds to amend his application and replace his witness statement? ¶5 Mr Simmonds filed his Form 6 – Application to the Work Health and Safety Tribunal on 29 September 2023. At that stage he was represented by Lafayette Legal Consulting. Mr Simmonds listed twelve individuals as well as Western Power as the respondents. To enable Western Power and the Tribunal to understand Mr Simmonds’ application, on 2 October 2023 the Tribunal directed Mr Simmonds to file a document that clearly set out which subsection of the WHS Act he says applies, and the alleged discriminatory conduct and prohibited reason. Mr Simmonds filed that further document on 4 October 2023. Western Power and the other respondents duly filed responses to Mr Simmonds’ application on 31 October 2023. ¶6 On 3 November 2023 Mr Simmonds said he was no longer represented by Lafayette Legal Consulting. ¶7 The matter was conciliated in November 2023 but did not resolve. ¶8 In December 2023 Hammond Legal became Mr Simmonds’ legal representative. Mr Simmonds asked for leave to amend his application. The Tribunal granted him leave to do so. Programming orders were made on 13 December 2023 after a directions hearing: 1. By 3.00 pm on 2 February 2024, the applicant file an amended application. 2. By 4.00 pm on 14 February 2024, the respondents file and serve any interlocutory application seeking that the amended application or any part thereof be struck out. 3. If the respondents file an interlocutory application in accordance with order 2: a. By 4.00 pm on 21 February 2024, the respondents file and serve any written submissions in respect of the interlocutory application. b. By 4.00 pm on 6 March 2024, the applicant file and serve any written submissions in respect of the interlocutory application. 4. The interlocutory application be heard on a date to be fixed by the Tribunal. 5. Subject to further order, evidence in chief in this proceeding be adduced by way of written witness statement (with the exception of conversation or discussion evidence that is likely to be contested, which will be set out in an outline of evidence for each witness). 6. By no later than 10 weeks before the start of the substantive hearing, the applicant file and serve any witness statement on which he wishes to rely in the substantive hearing. 7. By no later than 6 weeks before the start of the substantive hearing, the respondents file and serve any witness statement on which they wish to rely in the substantive hearing. 8. Each party is to notify the other parties of any witnesses they intend to cross examine by no later than one week before the start of the substantive hearing. 9. By no later than 4 weeks before the start of the substantive hearing, the applicant file and serve written submissions on which he wishes to rely in the substantive hearing. 10. By no later than 3 weeks before the start of the substantive hearing, the respondents file and serve written submissions on which they wish to rely in the substantive hearing. 11. The substantive application be listed for hearing, with an estimate of 5 days, starting on a date to be fixed by the Tribunal, not before 1 May 2024. 12. The parties have liberty to apply to vary these orders on 3 days’ notice; ¶9 On 2 February 2024 Mr Simmonds filed an amended application and in effect also asked that the application be discontinued in relation to the individual respondents. The Tribunal ordered that the application be discontinued in relation to the individual respondents. ¶10 Western Power did not file the interlocutory application foreshadowed in the second programming order set out above at [8]. ¶11 On 18 March 2024 Mr Simmonds filed a document entitled ‘Witness Statement – Justin Simmonds (the applicant)’ (Original Statement). ¶12 On 27 March 2024 Mr Simmonds wrote to chambers and the Registry to highlight that the allegations in the Original Statement are different to those in his amended application. He asked if he needed amend his application again. Hammond Legal then informed the Registry that it no longer represented Mr Simmonds. On 28 March 2024, the Tribunal explained to Mr Simmonds that the Original Statement did not appear to meet the requirements of a witness statement in a number of respects. For example, it was written in the third person, it did not appear to include words to the effect of ‘I have read the contents of this my witness statement and the documents referred to in it and I am satisfied that it is correct and that this is the evidence-in-chief which I wish to give at the trial of the proceeding’; and it was undated and unsigned. Further, the Tribunal told Mr Simmonds that he would need to seek leave before he could amend his application again. ¶13 On 28 March 2024 Western Power indicated that it would oppose any application to amend the application. ¶14 Ultimately, on 2 April 2024 Mr Simmonds filed the Applications the subject of this decision. Broadly he says he wants to amend his application again to include additional allegations and events that Hammond Legal did not include in the amended application. Mr Simmonds says Hammond Legal did not follow his instructions or properly consult with him before filing the amended application on 2 February 2024. He says the amendments support the administration of justice, save time for all, correct any defects or errors, avoid multiple proceedings and meet the objects of the Industrial Relations Act 1979 (WA) (IR Act). He says Western Power is aware of the legislation he alleges that it breached and has enough information about his allegations and the timeline to adequately prepare for the hearing. ¶15 Western Power opposes the Applications. In essence, it says the replacement witness statement contains material changes to Mr Simmonds’ evidence and new allegations. Western Power says it is not apparent why those matters could not have been addressed in the Original Statement, and Western Power has already substantially progressed the preparation of its evidence, such that Western Power would be prejudiced if required to identify and respond to the additional allegations. ¶16 In relation to Mr Simmond’s application for leave to again amend his application, Western Power says: 1. If the applicant were allowed to amend the claim, the respondent would be prejudiced in that there will be significant additional costs associated with preparing an amended response and amended witness statements (including the likely need for further witnesses).  Additionally, it would be inevitable that the current hearing dates would be lost if leave were granted. 2. The respondent has already incurred unrecoverable costs as a consequence of the applicant amending his application once. 3. The respondent has already filed a response to the original application on 29 September 2023 in which it first foreshadowed it concerns in relation to aspects of the applicant’s claim. These concerns were then explained in further detail before the Tribunal on 13 December 2024 and in a letter to the applicant’s representative on 21 December 2023.  Subsequently, the applicant was granted leave to file an amended application, which allowed the applicant significant time to confer with his legal representation and amend the application.  Despite this significant opportunity, the applicant now asserts that his amended application is deficient.  There is no explanation as to why the applicant asserts that such time was insufficient. 4. The respondent has proceeded with preparing its evidentiary materials which are now well advanced and intends to file these statements on 15 April 2024 in accordance with the programming orders made on 13 December 2023. 5. Further, the applicant has not filed any evidence in support of his application for leave to further amend the application.  The applicant has simply made assertions.  The respondent notes that any perceived shortcomings in the applicant’s prior legal representative’s services are not matters which can be heard or resolved in this forum and should not lead to the respondent incurring further costs, particularly in circumstances where the respondent is unlikely to recover its costs due to restrictions in the relevant legislation. ¶17 The Tribunal suspended the programming orders of 13 December 2023 in order to resolve these Applications. The parties consented to the Applications being determined on the papers. Consideration ¶18 For the reasons that follow, I am not persuaded that I should grant the Applications. ¶19 The Tribunal is not a court of pleading. Clause 29 of Schedule 1 of the WHS Act provides that various provisions of the IR Act apply to the exercise of jurisdiction by the Tribunal with any necessary modifications. They include s 26(1) and 27 of the IR Act. Broadly, this means that the Tribunal, like the Commission, may allow amendments on any terms it thinks fit, correct, amend or waive errors, defects or irregularities and generally give all such direction and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter. ¶20 As the Full Bench in Civil Service Association of Western Australia Incorporated v Director General as the employing authority, Department of Justice [2023] WAIRC 00793 said at [19]: ¶21 While the discretion will be exercised having regard to the particular facts and circumstances of each case, some of the factors which are ordinarily relevant when dealing with an application to amend grounds of appeal are: (a) the time when notice was first given to the Full Bench and the respondent of the intention to apply for the amendment; (b) the explanation, if any, for seeking amendment; (c) whether the proposed amendment constitutes a reasonably arguable ground of appeal; (d) the consequences to the appellant of not granting leave to amend; (e) the extent of any prejudice to the respondent; (f) any measures which may be taken to eliminate or reduce the prejudice to the respondent; and (g) issues of delay and costs. ¶22 Mr Simmonds has had ample time and opportunity to articulate his claims. In effect, Mr Simmonds has already had several opportunities and considerable time to amend his application. Further, Mr Simmonds was aware of the amended application filed by his representative in early February 2024 and is bound by his representative’s actions. After his amended application was filed on 2 February 2024, Mr Simmonds took nearly two months to give notice of his intention to apply for this further amendment. In the context of this matter, that is a long period of time. I am not persuaded that there is an adequate reason for the length of time, nor for seeking the amendments. I accept that Western Power would be prejudiced as set out above at [16] if the Applications were upheld. Granting the Applications would also mean the hearing dates would be lost. This matter is currently listed for five days’ hearing. Further, granting the Applications would likely double, if not triple, the time needed to hear this matter. That would flow on in delay and costs as well. Generally, such costs are not recoverable in this jurisdiction: Consolidated Pastoral Company Pty Ltd; Hancock Prospecting Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00101. ¶23 Even if the proposed amendments constituted a reasonably arguable ground of appeal, in all the circumstances of this matter, I am not persuaded that the amendments sought are necessary or expedient for the expeditious and just hearing and determination of the matter. It would not be in accordance with s 26(1) of the IR Act to grant leave for Mr Simmonds to amend his application and replace his witness statement. ¶24 Programming orders for evidence in chief to be given by witness statement were made on the basis that the parties were represented. Given the issues already raised with Mr Simmonds’ Original Statement, the likelihood of Western Power objecting to content in the proposed replacement witness statement, and that Mr Simmonds is unrepresented, I consider it appropriate and preferable to treat Mr Simmonds’ Original Statement as an outline of evidence. Mr Simmonds will be able to give his evidence in chief orally and the Tribunal will ensure that Mr Simmonds has a fair and proper opportunity to present his case. ¶25 For these reasons, leave is not granted and the Applications are dismissed. An order has issued accordingly.