Annovazzi v State of New South Wales - Sydney Trains (No 2)
[2025] FedCFamC2G 480
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Annovazzi v State of New South Wales - Sydney Trains (No 2) [2025] FedCFamC2G 480
File number(s): SYG 3116 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 4 April 2025 Catchwords: HUMAN RIGHTS - disability discrimination – practice and procedure – matter remitted following Full Federal Court (FFC) setting aside declarations – application by respondent for leave to reopen case by tendering documents (Documents) – leave granted subject to the condition that the respondent identifies the facts it submits it intends to prove at the hearing on remitter on the basis of the Documents and whether those facts are consistent with findings the FFC made (FFC findings) and the findings the primary judge made that have not been disturbed by the FFC (undisturbed findings) and to the extent the respondent seeks to prove facts that are inconsistent with the FFC and undisturbed findings, the respondent identifies the basis on which the respondent will contend it is open to the Court on remitter to make findings that are inconsistent with such findings.
PRACTICE & PROCEDURE – application for release from Harman undertaking – special circumstances not shown – application refused.
Legislation: Disability Discrimination Act 1992 (Cth) ss 10, 15, 30
Evidence Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth) s 28(1)(c)
Cases cited: Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479
Fernando v Commonwealth of Australia [2014] FCAFC 181
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105
Hearne v Street [2008] HCA 36
McCarthy v McIntyre [2000] FCA 1250
Purkess v Crittenden [1965] HCA 34
Smith v New South Wales Bar Association (1992) 176 CLR 256
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472
State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120
Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167
Division: General Number of paragraphs: 72 Date of hearing: 4 February 2025 Place: Sydney The Applicant: Appeared in person Counsel for the Respondent: Mr M Seck Solicitor for the Respondent: McCullough Robertson Lawyers ORDERS
SYG 3116 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RENEE ANNOVAZZI
Applicant
AND: STATE OF NEW SOUTH WALES - SYDNEY TRAINS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.The applicant’s application that she be released from the Harman undertaking in relation to the documents:
(a)the respondent produced to the applicant in answer to a call for production during the hearing on 28 February 2022; and
(b)Dr Nicola Gates produced to the Court in answer to a subpoena,
is dismissed.
2.Subject to order 3, the respondent is granted leave to reopen its case by adducing evidence at the hearing (remitter hearing) of the issues the Full Court of the Federal Court of Australia (FFC) remitted to this Court, that evidence being the documents (Documents) comprised in the exhibit marked “AS-1” to the affidavit of Amber Leigh Sharp affirmed on 6 December 2024.
(a)The leave granted in order 2 is subject to the condition that by 28 April 2025, or by such later date as the respondent may reasonably require, the respondent file and serve submissions on which it intends to rely at the remitter hearing in which, at the very least, the respondent:
(b)identifies each of the “previous representations” (as that expression is used in the Evidence Act 1995 (Cth)) the respondent submits is conveyed by each of the Documents, and on which it intends to rely at the remitter hearing; and to the extent the respondent will submit that any previous representation arises by implication, identifies the matters on which the respondent will rely for the implication;
(c)identifies each finding of fact (Submitted Finding) the respondent submits the Court ought to make wholly or partly on the basis of the previous representations it identifies pursuant to 3(a), and the matters on which the respondent will rely for so submitting;
(d)in relation to each Submitted Finding, specifies whether it is or is not consistent with the findings the FFC made, and with findings contained in the reasons for judgment published by this Court on 23 June 2023 which the FFC has not disturbed; and
(e)to the extent the respondent seeks to rely on a Submitted Finding that is inconsistent with any one or more of the findings referred to in 3(a), identifies the FFC or undisturbed finding with which the Submitted Finding will be said to be inconsistent, and states the grounds on which the respondent submits it would be open to this Court on remitter to make a finding that is inconsistent with those findings.
3.By 19 May 2025, or by such later day as the applicant may reasonably require, the applicant may file and serve any affidavits and submissions on which she intends to rely at the remitter hearing.
4.The matter be listed for a directions hearing at 9:30 am on 27 May 2025, or at such other time and date as is convenient to the parties and to the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 23 June 2023, on the basis of reasons for judgment I published on that day (Earlier Reasons),[1] I made the following declarations (Declarations):
1.Contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (DD Act) on 31 January 2018 the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities by dismissing the applicant from her employment with the respondent.
2.Contrary to s 15(2)(d) of the DD Act the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities by keeping the applicant out of the trainee drivers course after 9 January 2018.
3.On 20 December 2017 and 23 January 2018 the respondent acted contrary to s 30(2) of the DD Act by requesting the applicant provide a medical note or a briefing from the applicant’s treating physician regarding the applicant’s disabilities.
[1] Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542
On 12 September 2024 the Full Federal Court (FFC) set aside the Declarations, and ordered that, if the matter were not to resolve in a mediation the FFC ordered take place, the “matter be remitted to the primary judge . . . to determine the matter according to law”.[2] The parties did not resolve their differences at the mediation that was held; and, consequently, the matter has been remitted to me.
[2] State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120
At a directions hearing on 22 November 2024 Ms Sharp, who appeared for the respondent (Sydney Trains), informed me that Sydney Trains intended to apply for leave to reopen its case by tendering documents. I made directions for the filing of evidence and submissions, and set down the matter on 4 February 2025 to hear Sydney Trains’ application for leave to reopen.
In these reasons for judgment, I consider whether I should grant Sydney Trains leave to reopen its case. To be in a position to consider that question, it will be necessary to identify the issue or issues the FFC remitted to me for determination according to law, and any directions the FFC gave, or it may be inferred it gave, about how I should determine those issues. That, in turn, requires me to set out the errors the FFC found I made, and the findings I made which the FFC has not disturbed.
I also consider an application the applicant, Ms Annovazzi, makes for leave to use documents that have been produced in this proceeding in answer to a call and on subpoena for purposes other than in this proceeding.
These reasons assume familiarity with the Earlier Reasons (including the abbreviations that appear in those reasons) and the reasons of the FFC on the basis of which the FFC set aside the Declarations (FFC Reasons). In identifying findings and reasoning contained in the Earlier Reasons, I will refer to myself as the “Primary Judge”.
ERRORS FFC FOUND
The issues that have been remitted relate to the setting aside of the first and third Declarations; and those issues arise out of the following errors the FFC found the Primary Judge made:
(a)finding that “the person or persons within TSS were the principal decision-makers in relation to Ms Annovazzi’s dismissal” (error 1);[3]
(b)finding that “TSS were “authorised agents” in respect of the decision to dismiss Ms Annovazzi from her employment” (error 2);[4]
(c)focusing “upon the Purported Decision to Terminate instead of examining the entirety of the acts and conduct that gave rise to Ms Annovazzi’s dismissal, and the reasons for them” (error 3);[5]
(d)finding that “the person or persons within TSS did not believe Ms Annovazzi had been dishonest or did not care whether she had been dishonest or not” (error 4);[6] and
(e)having apparently reasoned that, given “there was no rational or reasonable basis upon which the person or persons within TSS could have considered that Ms Annovazzi had been dishonest . . . it followed that they acted the way they did because of her disabilities” (error 5).[7]
[3] FFC Reasons, [126]
[4] FFC Reasons, [128]
[5] FFC Reasons, [191]
[6] FFC Reasons, [192]
[7] FFC Reasons, [194]
Error 1 was an error for two reasons. First, the FFC found: [8]
that the person or persons within TSS were part of the decision-making process in respect of which Ms Browning and Ms Samassa also played a part. The evidence established that, while TSS considered that Ms Annovazzi should not undertake an FFD Assessment, Ms Browning agreed, and, eventually, Ms Samassa made the legal decision to terminate. We consider that the correct characterisation of the evidence is that each of TSS, Ms Browning and Ms Samassa were involved in the one decision-making process which culminated in the dismissal of Ms Annovazzi’s employment.
[8] FFC Reasons, [126]
Second, the evidence did not establish that TSS had actual or apparent authority “to make the effective decision to terminate, as opposed to providing advice about such a decision”,[9] although the FFC found the Primary Judge was correct to find that TSS were the “authorised agents” of Sydney Trains “for the purpose of deciding whether Ms Annovazzi was to be referred to an [sic] FFD assessment”.[10]
[9] FFC Reasons, [127]
[10] FFC Reasons, [128]
Errors 2 and 3 were errors because the “evidence supported a finding that Sydney Trains sought the advice and recommendations of TSS, but stopped short of establishing that Sydney Trains had authorised TSS to make an actual decision in relation to the termination of Ms Annovazzi’s employment”.[11]
[11] FFC Reasons, [128]
Error 4 was an error because it appears:[12]
the primary judge misapplied Jones v Dunkel (1959) 101 CLR 298 and Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361. It was open to his Honour to draw an inference from an unexplained failure to call evidence, but the inference available to be drawn was not that the evidence would be adverse to Sydney Trains but that it would not have assisted it (assuming the conditions for the drawing of the inference existed): Kuhl at [64].
[12] FFC Reasons, [192]
Error 5 was an error because “it [was] not tied to the evidence that was before the primary judge and assumes that the rejection of a posited reason equated to acceptance of the proscribed reason”.[13]
[13] FFC Reason, [194]
The FFC also held that the Primary Judge made an error to the extent he “sought to support his conclusions by reference to the fact there was no evidence that Sydney Trains made any enquiry of Ms Annovazzi as to her completion of the Medical Questionnaire or any investigation into what she had disclosed to Dr Kumar or Mr Bellia”.[14] The FFC found:[15]
The primary judge appears to have reasoned that there was no rational or reasonable basis upon which the person or persons within TSS could have considered that Ms Annovazzi had been dishonest and therefore it followed that they had acted the way they did because of her disabilities. The difficulty with this reasoning is that it is not tied to the evidence that was before the primary judge and assumes that the rejection of the posited reason equated to acceptance of the proscribed reason.
[14] FFC Reasons, [194]
[15] FFC Reasons, [194]
UNDISTURBED AND FFC FINDINGS
There are a number of findings (undisturbed findings) the FFC did not disturb or, at least, expressly disturb, that were relevant to the first and third Declarations. There are also findings the FFC itself made (FFC findings). The FFC and undisturbed findings include the following:
(a)By 9 January 2018 a person or persons within TSS had formed the view that Ms Annovazzi should not be referred for an “FFD Assessment” and instead the matter should be treated as a “failure to declare”, which essentially meant that it was a misconduct matter.[16]
[16] FFC Reasons, [88]
(b)The matter was referred to Ms Samassa for her approval because, in her words, she “had the appropriate delegation to make the decision”.[17]
[17] FFC Reasons, [88]
(c)By this time, it had already been decided that Ms Annovazzi would not undergo an FFD Assessment, and that the matter was to be treated as what Ms Samassa described as a “conduct issue”.[18]
[18] FFC Reasons, [88]
(d)There was no evidence that identified the person or persons within TSS that Ms Browning, in her email of 9 January 2018, said had communicated to her “their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period”.[19]
[19] FFC Reasons, [89(a)]
(e)There “was also no evidence that identified the material on the basis of which such persons within TSS formed these views, or the reason(s) they did so”.[20]
[20] FFC Reasons, [89(b)]
(f)Shortly after 15 January 2018, Ms Browning informed Ms Samassa that a decision had been made by a person or persons within TSS that Ms Annovazzi would not undergo an FFD assessment, and that, instead, Ms Annovazzi’s employment was to be terminated on the basis that she had dishonestly failed to disclose her true medical condition, which the Primary Judge defined as the “Purported Decision to Terminate”.[21]
[21] FFC Reasons, [89(c)]
(g)Ms Browning sought Ms Samassa’s approval of the Purported Decision to Terminate, and to give effect to that decision, if she approved of it.[22]
[22] FFC Reasons, [89(d)]
(h)There was no evidence that identified the person or persons who made the Purported Decision to Terminate, or the day on which the Purported Decision to Terminate was made, or the reason or reasons for which the person or persons made the Purported Decision to Terminate, or the matters on which the person or persons made the Purported Decision to Terminate, or the person or persons who communicated to Ms Browning the Purported Decision to Terminate, or when and by what means the Purported Decision to Terminate was communicated to Ms Browning.[23]
[23] FFC Reasons, [89(e)]
(i)In support of her request that Ms Samassa approve the Purported Decision to Terminate, Ms Browning provided Ms Samassa with the Medical Questionnaire, the Examination Report, and the Briefing Note.[24]
[24] FFC Reasons, [89(f)]
(j)Ms Samassa read the three documents that Ms Browning had provided to her, and accepted as true the information that Ms Browning had communicated to her.[25]
[25] FFC Reasons, [89(g)]
(k)Ms Samassa accepted the assertion that Ms Annovazzi had dishonestly withheld medical information and, on that basis, Ms Samassa approved the Purported Decision to Terminate, and gave effect to that decision by drafting and signing the Termination Letter.[26]
[26] FFC Reasons, [89(h)]
(l)Ms Samassa was not the sole decision-maker.[27]
[27] FFC Reasons, [93]
(m)If the Purported Decision to Terminate had not been made, Ms Browning would not have approached Ms Samassa for any approval, Ms Samassa would not have approved that decision, and Ms Samassa would not have given effect to that decision by drafting the Termination Letter, and providing that letter to Ms Browning for the purpose of Ms Browning giving the letter to Ms Annovazzi.[28]
[28] FFC Reasons, [93]
(n)Even though the evidence did not reveal whether TSS was an entity separate to Sydney Trains or not, it was the authorised agent, or the persons within TSS were the authorised agents, of Sydney Trains for the purpose of deciding whether Ms Annovazzi was to be referred to an FFD Assessment.[29]
[29] FFC Reasons, [94]
(o)The evidence went beyond TSS and Ms Browning making a recommendation that Ms Annovazzi’s employment be terminated; the evidence established that TSS and Ms Browning had in fact made determinations or decisions that required the approval of Ms Samassa.[30]
(p)The effect of the evidence, which the Primary Judge accepted, was that, although Ms Samassa made the formal and legal decision to terminate Ms Annovazzi’s employment, the effective decision to that end had already been made. That is not to say that Ms Samassa did not make the decision to terminate or turn her mind to whether she should give effect to that decision, but rather that there was a process of decision-making that involved persons other than Ms Samassa in respect of which her act of preparing and signing the Termination Letter was the final step.[31]
(q)The primary judge reasoned that the effect of making that decision was that Ms Annovazzi’s employment “was to be terminated”. This was not a finding that the person or persons within TSS had made the decision to terminate, but that termination was to be the consequence of the decision made that Ms Annovazzi would not undertake an FFD Assessment. It was this determination that the Primary Judge defined as the “Purported Decision to Terminate”.[32]
(r)On the Primary Judge’s findings, once the decision had been made that Ms Annovazzi would not be referred to Sonic Health for a FFD Assessment, the natural effect of that was that Ms Annovazzi’s employment would be terminated. That conclusion correctly accords with the evidence, which was as follows: [33]
(i)Mr Bellia had recommended that Ms Annovazzi be referred for an FFD Assessment;
(ii)Dr Casolin had also stated that Ms Annovazzi should be referred for an FFD Assessment;
(iii)Ms Zidan had been proceeding on that basis and was seeking that TSS make arrangements for such an assessment to occur;
(iv)it followed that, up until 9 January 2018, the position that prevailed was that Ms Annovazzi would be referred for an FFD Assessment;
(v)however, at some point on 9 January 2018, the position changed and a decision was made that Ms Annovazzi would not be referred for an FFD Assessment and instead the matter would be treated as one involving a conduct issue on the basis that Ms Annovazzi had been dishonest.
[30] FFC Reasons, [120]
[31] FFC Reasons, [120]
[32] FFC Reasons, [122]
[33] FFC Reasons, [124]
There are two related findings the Primary Judge made that require separate attention. The first is that the Primary Judge was “not prepared to find that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion they may have formed that Ms Annovazzi had been dishonest was true or not”.[34] The second is that the Primary Judge was “not satisfied that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion such person or persons may have formed that Ms Annovazzi had been dishonest was true or not”.[35] The FFC did not disturb these findings, and otherwise did not criticise them. The FFC, however, considered that the Primary Judge found that “the person or persons within TSS did not believe Ms Annovazzi had been dishonest or did not care she had been dishonest”.[36] The Primary Judge made no such finding.
[34] Earlier Reasons, [89(b)]
[35] Earlier Reasons, [141]
[36] FFC Reasons, [192]
It is not clear on what basis the FFC concluded the Primary Judge made a finding that “the person or persons within TSS did not believe Ms Annovazzi had been dishonest or did not care she had been dishonest”. It is unlikely the FFC so concluded on the basis of the Primary Judge’s findings of non-satisfaction; and that is because a fact finder’s not being satisfied that an alleged fact exists does not logically entail satisfaction that the alleged fact does not exist. By itself, non-satisfaction of the existence of an alleged fact entails nothing more than a conclusion that there is no material on the basis of which a finding can be made as to the existence or non-existence of the alleged fact. In short, non-satisfaction of the existence of an alleged fact entails doubt as to its existence, not certainty as to its non-existence.[37]
[37] “The true opposites of belief, psychologically considered, are doubt and inquiry, not disbelief.” (James, Principles of Psychology, quoted in C C. Moore A Treatise on Facts, Vol.1 Edward Thompson Company 1908, at page 8).
The relevance the Primary Judge attached to the finding that he was “not satisfied that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion such person or persons may have formed that Ms Annovazzi had been dishonest was true or not” is that the question whether an inference was available to be drawn that Sydney Trains terminated Ms Annovazzi’s employment because of her disabilities was to be determined on the basis of their being insufficient evidence to raise belief in Ms Annovazzi’s dishonesty as a reason for any person within TSS making the Purported Decision to Terminate. Stated in the language of the burden of proof, the Primary Judge’s non-satisfaction amounted to a finding that Sydney Trains did not discharge the evidentiary burden of raising as an issue that belief that Ms Annovazzi was dishonest was a reason for the making of the Purported Decision to Terminate.[38]
[38] As for the distinction between evidentiary and legal burdens of proof see Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at pages 167-168: “The expression “burden” or “onus” of proof, “As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence” (Phipson on Evidence, 10th ed. (1963) par. 92). . . The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: “the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates”.”
WHAT HAS BEEN REMITTED?
The FFC identified three sets of questions it intended to remit. The first arises out of errors 1, 2, and 3 (emphasis added):[39]
As a result of the conclusion we have reached that each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi, it follows that the matter will need to be redetermined on that basis. It would follow that the questions as to the appropriate comparator and causation will need to be redetermined by reference to our finding. In this regard, the central question will be why the dismissal occurred having regard to the objective circumstances of the decision-making process.
We do not consider that we are in a position to determine these matters for ourselves. We have received no submissions from the parties as to the determination of the case on this basis. There are factual findings made by the primary judge that will bear upon these matters including, for example, the primary judge’s statement at PJ [54] that his Honour was not prepared to find that those involved in the decision to terminate Ms Annovazzi’s employment were not unaware of the text messages between Ms Annovazzi and Mr Bellia, and the statement in Ms Browning’s email of 9 January 2018 that Sydney Trains had been provided with conflicting information from Ms Annovazzi.
[39] FFC Reasons, [129], [130]
From this it will be apparent that the scope of the intended remitter in relation to errors 1, 2, and 3 is for me to:
(a)redetermine “why the dismissal [of Ms Annovazzi] occurred having regard to the objective circumstances of the decision-making process”, those circumstances being that “each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi”; and
(b)“redetermine…on that basis”, that is, “that each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi”, “questions as to the appropriate comparator and causation”.
Given the FFC said “there are factual findings made by the primary judge that will bear upon these matters”, it may be inferred that the FFC contemplated that the first set of issues it held should be remitted to the Primary Judge are to be determined by reference to the FFC and undisturbed findings.
The second set of questions the FFC has intended to be remitted arise out of errors 4 and 5 (emphasis added):[40]
In our view, the question of causation will need to be redetermined having regard to the findings we have made about the decision-making process and by applying the abovementioned principles. In the course of that redetermination, it will be necessary to identify the evidentiary basis upon which it is found that Sydney Trains dismissed Ms Annovazzi, including whether it was by reason of her disabilities. It may be that the parties will need to address the primary judge as to the evidence of what was conveyed by Ms Annovazzi to Dr Kumar, and then to Mr Bellia, and what of those matters were then conveyed to those who were involved in the decision-making processes. The parties may also need to address the primary judge as to why it was irrational or unreasonable for anyone within TSS, or Ms Browning or Ms Samassa to have held a belief that Ms Annovazzi had been dishonest in relation to the questions asked of her in the Medical Questionnaire.
[40] FFC Reasons, [198]
Thus, the second question I must consider on remitter is the “question of causation”, with that question having to be “redetermined having regard to the findings [the FFC] made about the decision-making process and by applying the abovementioned principles”, being the principles the FFC discussed in paragraphs 194-196 of the FFC Reasons. In reconsidering the question of causation, it will be necessary to identify the evidentiary basis on which it is found Sydney Trains dismissed Ms Annovazzi. The FFC contemplates that the second set of questions is to be redetermined by the reference to the FFC and undisturbed findings, and on the material that has already been admitted into evidence.
The third set of issues relates to Declaration 3 which has been set aside as a necessary consequence of the errors on the basis of which the FFC set aside Declaration 1. It will need to be redetermined only if, on reconsideration of the other questions that have been remitted, I find that Sydney Trains unlawfully discriminated against Ms Annovazzi by terminating her employment.
THE DOCUMENTS SYDNEY TRAINS SEEKS LEAVE TO TENDER
In this section of my reasons, I will identify in chronological order the documents (Proposed New Evidence) Sydney Trains intends to adduce if I grant it leave to reopen its case.
The first document is a “Briefing Note” dated 30 November 2017 from Ms Vlahos to Health Solutions (Document 1).[41] Ms Vlahos describes herself as “Manager Training & Competence”. This briefing note is substantially similar to the “Briefing Note” I set out in paragraph 51 of the Earlier Reasons. The briefing note requested Health Solutions:
undertake a FFD assessment and to refer Trainee Driver Annovazzi for a Psychiatric and if required neuropsychological assessment to determine if she is suitable to undertake Category I duties by Sonic asap, as well as the impact of not being able to take dexamphetamine could have on her attentiveness.
[41] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 18
The second document is the following email Mr Lesser, “Senior Health Solutions Coordinator Injury & Claims Management | Transport Shared Services”, sent to Mr Ian Elliot at 9:27 am on 8 December 2017 (Document 2).[42]
I believe my manager, Sharon Martin, briefly spoke with you regarding a referral we have received for Renee Annovazzi who began her employment with Sydney Trains in October.
Please see attached brief we have received from local management as it states in this brief that the employee (who is clearly still on probation) did not declare her medical condition in her application nor at the triggered health assessment she was required to attend.
If you could please clarify what the employee did or did not declare in her application it would be appreciated as I am of the opinion that this case should not have been referred to us and should have been referred to HR or Workplace Conduct.
[42] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 51
The third document is an email Mr Ian Elliot sent to Mr Lesser at 9:46 am on 8 December 2017 (copied to Ms Amanda Robertson and Biljana Joseski) (Document 3):[43]
Thanks for your email.
Billie, copied to this email is the recruiter for this campaign (TTD - 000051X5), however, I’ve had a look at the employee’s application and can’t see anything mentioned about her health condition being declared as you ask below.
I’ve copied in our manager, Amanda, in case she would like to comment further.
[43] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 51
The fourth document is an email Mr Lesser sent to Ms Browning at 12:11 pm on 8 December 2017 (Document 4).[44]
I am seeking your assistance with a matter pertaining to a new employee, Trainee Train Driver - Renee Annovazzi, who commenced employment with Sydney Trains in October.
Renee’s manager referred her to our team for a fitness for duty assessment as she self-identified that she was taking medications for a medical condition which may show up as a positive result on random drug testing.
The issue is the employee advised management that she did not declare this medical condition on her job application nor at her initial Category 1 health assessment.
Having discussed this at length with my own management team, we do not believe this should have been referred to us and rather should be handled by HR and possibly Workplace Conduct as the employee has admitted to not divulging her medical condition as required for her application or at the initial health assessment.
It would be appreciated if you could please review the response from Recruitment and attached brief signed by Soula Vlahos and provide some direction on how this matter should be handled.
[44] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 50
The fifth document is the following email Ms Vlahos sent to Ms Browning at 6:40 pm on 13 December 2017 (Document 5) (errors in original):[45]
Dr Casolin provided advice over the phone. His advice was to request and FFD.
I have since spoken the Renee after my discussions with Dean Lesser and she is adamant that she advised Sonic of her medical condition and that she was taking medication. She also claims that she did not indicate that she had a medical condition in her application as she did not think the condition would impact on her role as a driver.
We had a similar case recently for a trainee driver who declared that he was prescribed the same medication as Renee but had not commenced taking the medication until he sought permission from his employer. He went through an FFD and has been found fit for CAT 1 and also approved to take the medication. He will however need to attend an assessment for dyslexia.
I will be guided by you on what approach we take in relation to Renee's case.
[45] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 50
The sixth document is an email Mr Lesser sent to Mr Malcom O’Neill (Document 6), which was forwarded to Mr O’Neill at 8:51 am on 14 December 2017 with Documents 2, 3, and 4.[46] According to the email which I identify as “Document 10” below, Mr O’Neill occupied the position of “A/Team Leader, Health Solutions Injury & Claims Management | Transport shared Services People and Corporate Services Transport for NSW”.[47]
[46] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 53
[47] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 72
The seventh document is an email Ms Browning sent to Mr Ian Elliot (copied to Biljana Joseski) at 4:50 pm on 18 December 2017 (Document 7):[48]
Further to the inquiry regarding the medical declaration of employee Renee Annovazzi, can you please assist with the following at your earliest:
-Full copy of application
-Indication of the Sonic Medical appointment who was the Dr
[48] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 56
The eighth document is an email Biljana Joseski sent to Ms Browning at 5:29 pm on 18 December 2017 containing a link to Ms Annovazzi’s application and medical report (Document 8).[49]
[49] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 57
The ninth document is the following email Ms Browning sent to Mr Lesser at “10:11:00 AM + 11:00” on 19 December 2017 (Document 9):[50]
Is it possible for you to make contact with Mr Sonic Dr (refer to attached report), and ask the following questions regarding Ms Annovazzi’s declarations/discussions at the initial medical assessment.
-Did she indicate ADHD
-Did she indicate Asperger Syndrome
-Did she indicate the use of Dexamphetamine
With confirmation or otherwise of the above, I will progress with the appropriate next steps.
[50] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 57
The tenth document is the following email Mr O’Neill sent at 11:08 am on 19 December 2017 to “[email protected]”, copied to Julian Sesnan, Mr Lesser, and Ms Browning (Document 10).[51]
Could you please confirm with Dr Kumar if Ms Annovazzi made the following declarations/discussions at the initial medical assessment:
-Did she indicate ADHD
-Did she indicate Asperger Syndrome
-Did she indicate the use of Dexamphetamine
[51] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 72
The eleventh document (Document 11) is the following email Ms Browning sent to Mr O’Neill at 11:09 am on 19 December 2017 in response to Document 10:[52]
Thanks Malcolm
As an aside, we are also asking Ms Annovazzi to provide a medical note from her Dr re the medication and conditions.
With a full picture, the next steps will (hopefully) become evident.
[52] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 72
The twelfth document (Document 12) is an email “Luke” from “Specialised Rail Unit” sent to Mr O’Neill at 1:42 pm on 19 December 2017 (copied to Mr Sesnan, Mr Lesser, and Ms Browning), stating that “we cannot disclose what declarations have been noted on the below candidate’s medical advice”, and requested that Mr O’Neill “advise us if you would like us to pass this medical onto Dr. Casolin for review”. [53] The thirteenth document (Document 13) Ms Browning sent to Luke of “Specialised Rail Unit” requesting to “have the information provided to Dr Casolin”.[54]
[53] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 73
[54] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 73
The fourteenth document (Document 14) is an email Dr Casolin sent to Ms Browning at 4:11 pm on 9 January 2018 in response to the email reproduced in paragraph 65 of the Earlier Reasons. Dr Casolin said that he did not have a copy of Ms Annovazzi’s medical note but he was “told by Dr Jones from Sonic that no psych condition was declared nor was dexamphetamine use”.[55]
[55] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 75
The fifteenth document (Document 15) is an email Mr Lesser sent to Ms Browning at 9:48 am on 15 January 2018 requesting “an update regarding this case and whether it has been determined that the FFD assessment should proceed”.[56] The sixteenth document (Document 16) is an email Ms Browning sent to Mr Lesser at 8:36 pm on 15 January 2018 in which she stated:[57]
She had until this week to provide information from her own Dr regarding her condition.
I await this prior to determining next steps.
I ve (sic) confirmed with Dr Casolin, the conditions and medication were not indicated during her pre-employment medical.
[56] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78
[57] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78
Mr Lesser replied by email sent at 8:26 am on 16 January 2018 (Document 17) thanking Ms Browning for her reply, and noting that he “will follow up again with [Ms Browning] next week regarding this matter”.[58]
[58] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78
The eighteenth document (Document 18) is an email Ms Annovazzi sent to Dr Casolin at 12:04 pm on 25 January 2018 attaching the letter from Dr Frukacz which is reproduced in paragraph 68 of the Earlier Reasons.[59] At 12:58 pm on 25 January 2018 Dr Casolin sent the following email to David Jones of Sonic Health (Document 19) (errors in original):[60]
Hi David you may recall Ms Annovazzi was attended a pre-employment health assessment for train driving but did not declare her pre-existing ADHD, dexamphetamine or aspergers. Can you please arrange for the attached letter to be saved on her file in the event that we request an FFD. The letter raises more concerns in my mind than it answers as Ms Annovazzi has ADHD that requires stimulant therapy but she only uses it PRN.
[59] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84
[60] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84
As is recorded in paragraph 70 of the Earlier Reasons, at 1:53 pm on 25 January 2018 Dr Casolin sent the following email to Ms Browning, Ms Zidan, Mr Lesser, Ms Vlahos, and Ms Ball:
Hi Janene just letting you know that I have received the letter from Ms Annovazzi’s psychiatrist confirming the prescription for dexamphetamine but there is still a question over her fitness to work as a train driver with her conditions which were not declared to, or assessed by, Sonic.
At 2:38 pm on 25 January 2018, in response to Dr Casolin’s email, Ms Browning sent an email (Document 20) to Dr Casolin and Mr Lesser (copied to Ms Vlahos and Ms Ball) thanking Dr Casolin for the email and continuing with: “Dean – can we proceed to arrange a fitness for duty”.[61]
[61] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 87
At 4:03 pm on 25 January 2018 Mr Jones sent an email (Document 21) to Dr Casolin which appears to respond to the email Dr Casolin sent to him at 12:58 pm on 25 January 2018. Mr Jones said:[62]
Presumably only when she feels her attention is particularly deficient? Oh dear.
I assume you can’t just sack her for lying (sorry, concealing the truth) on her PEM assessment?
I will arrange for the letter to be put in her folder as requested, but what about her RSW classification – she is currently FU so isn’t due another assessment for another 4 years or so?
[62] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84
Dr Casolin, in turn responded with the following email he sent to Mr Jones at 4:35 pm on 25 January 2018 (Document 22) (errors in original):[63]
Thanks David. That might be what happens but I don t have visibility of what action the workplace conduct unit might be taking.
[63] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 86
Mr Jones replied at 4:39 pm on 25 January 2018 with the following email (Document 23):[64]
OK – if you could let me know what happens, because if she retains her job and doesn’t otherwise get an FFD, my view is that she should be on annual review for this issue so I will have to fix that ….
[64] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84
Dr Casolin completed this email exchange with an email he sent to Mr Jones at 4:49 pm on 25 January 2018 (Document 24) (errors in original):[65]
Agreed. She had been removed from driver school and if she isn t dismissed, won t be going back without an FFD
[65] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84
In the meantime, at 4:37 pm on 25 January 2018 Ms Browning sent the following email to Dr Casolin and Mr Lesser, copied to Ms Vlahos and Ms Ball (Document 25):[66]
Thanks Dr Casolin
Dean we will not be pursuing FFD any further for Ms Annovazzi
Soula as discussed, we will progress with recommending termination under probation as there appears to be deliberate omissions in the pre-employment information. I will pull together the relevant brief required and progress through for approvals.
[66] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 92
At 9:03 am on 30 January 2018 Ms Browning sent the following email to Ms Vlahos (Document 26) (shading in original):[67]
Attached is the Briefing note recommending the Termination of Ms Rene Annovazzi.
Per the delegations, Director People and Change has the delegation with the relevant Level 4 manager (ie you)
Can you please review and sign the attached BN to me and I will arrange for onward delivery.
[67] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 100
The twenty-seventh document is the Briefing Note which, I infer, is the “attached BN” identified in Ms Browning’s email to Ms Vlahos (Document 27).[68] The Briefing Note is addressed to Ms Samassa, and copies a Ms Liz Pearce, “Senior Workplace Relations Consultant”; and it is as follows:
[68] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 37
ISSUE
Employee Renee Annovazzi (e/n: 20012706), commenced as a Trainee Driver with Sydney Trains on 13 October 2017, with a six month probation period. During training, Ms Annovazzi declared she had undiagnosed medical conditions and was taking prescription medication - information she had not disclosed during her preemployment medicals.
BACKGROUND
After commencement with Sydney Trains, Ms Annovazzi declared she had undiagnosed conditions of ADHD and Aspergers Syndrome and was taking prescribed Dexamphetamine. She was immediately removed from the Driver Trainer program and placed on alternate duties within Operations Support.
On 30 November 2017, Soula Vlahos requested a triggered medical for Ms Annovazzi (Tab A). At this time, discussion began between HR, Legal, Health Solutions TSS, and Sydney Trains Health Solutions regarding the most appropriate course of action.
On 19 December 2017, Ms Annovazzi was requested to provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Aspergers Syndrome. This information was provided in confidence to Dr Casolin on 25 January 2018 - confirming her use of Dexamphetamine only (Tab B).
On 9 January 2018, Confirmation was received from Sonic Health Solutions, via Dr Casolin, that no psychological conditions were declared, nor was the use of Dexamphetamine (Tab C). Further to this, a review of Ms Annovazzi's employment application (qns 10 & 12) confirms no medical conditions were declared (Tab D).
CURRENT POSITION
Ms Annovazzi has been completing alternate duties within the Training and Competence Assurance section of Operations Support, since her declaration of the above.
Discussions with Dr Casolin confirm there remains a question around her suitability for rail safety work due to the self-declared medical conditions of ADHD and Asbergers’[sic] Syndrome. Conducting a Fitness for Duty is an option available to Sydney Trains. However, the overriding consideration is Ms Annovazzi's failure to declare medical conditions and prescribed medications. Ms Annovazzi's failure to truthfully and honestly participate in the selection and appointment process enabled her to progress unchallenged and gain employment that may not have otherwise been available.
RECOMMENDATION
Ms Annovazzi's employment with Sydney Trains is terminated within her probation period, due to her failure to declare medical conditions and prescription medications during her pre-employment medicals with Sonic Health Plus and in her written application.
The Briefing Note provided for two persons to sign, one who has “Endorsed” the recommendation, and another who has “Approved” the recommendation. Ms Vlahos’s name appears as the person the Briefing Note contemplates will endorse the recommendation, and Ms Samassa is the person the Briefing Note contemplates will approve the recommendation. Document 27 contains what appears to be the signature of Ms Vlahos, but not the signature of Ms Samassa.
The final document (Document 28) is an email Ms Browning sent to Ms Vlahos on 30 January 2018 attaching “a letter for issue to Renee Annovazzi”, the attached letter being the letter terminating Ms Annovazzi’s employment.[69]
[69] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 101
SUBMISSIONS OF SYDNEY TRAINS
Sydney Trains submits as follows:
(a)The principal question on remitter will be to “redetermine whether [Sydney Trains] engaged in unlawful discrimination by dismissing [Ms Annovazzi] from her employment”. This will require consideration of “the central question . . . why the dismissal occurred having regard to the objective circumstances of the decision-making process”;[70] which, in turn, will require examining the acts and conduct of the unnamed TSS officers, Ms Browning, and Ms Samassa, and the reasons for their actions.[71]
[70] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [21(a)] quoting FFC Reasons, [129].
[71] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [21(a)]
(b)The Proposed New Evidence will assist the Court to address the questions remitted by the FFC.[72] That is so because the Proposed New Evidence is directed to the FFC findings that TSS, Ms Browning, and Ms Samassa were each involved in the decision-making process that culminated in Ms Annovazzi’s dismissal; and it consists of “contemporaneous business records, including emails, memoranda and related material which reveal or otherwise bear upon, the nature of the actions and the asserted reasons of members of TSS and the Respondent culminating in [Ms Annovazzi’s] dismissal”.[73]
[72] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [33]
[73] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [30], [31]
(c)Sydney Trains did not make a deliberate forensic decision to withhold the Proposed New Evidence because the Proposed New Evidence was not identified until recently in circumstances where:
(i)Ms Annovazzi did not plead that any person other than Ms Samassa was the person who on behalf of Sydney Trains terminated Ms Annovazzi’s employment but, on the contrary, by alleging Sydney Trains terminated her employment by the letter Ms Samassa wrote, Ms Annovazzi did not rely on any anterior acts of unidentified members of TSS or Ms Browning;[74]
(ii)Sydney Trains accordingly conducted its case on the basis that Ms Samassa was the sole decision-maker;[75]
(iii)in light of the FFC’s findings, Sydney Trains sought to identify contemporaneous business records which sheds light on, and evidence, the acts, conduct, and reasons for Ms Annovazzi’s dismissal, particularly involving members of TSS and Ms Browning;[76] and
(iv)in any event, had the Proposed New Evidence “been available”, it “overwhelmingly supports” the case of Sydney Trains “that the relevant decision-makers involved in the decision to terminate [Ms Annovazzi’s] employment did not do so because of her disabilities”.[77]
(d)The Proposed New Evidence, being “contemporaneous business records of [Sydney Trains] and TSS”, “will represent the best evidence of the actions and reasons of the relevant persons involved in the decision-making process to dismiss [Ms Annovazzi’s] employment given the events occurred more than 6 years ago and it is unlikely that the witnesses will have an independent recollection of what occurred”.[78]
(e)It is highly unlikely Ms Annovazzi will be prejudiced if Sydney Trains were given leave to reopen its case by tendering the Proposed New Evidence. Ms Annovazzi “will be entitled to test this evidence, including making submissions as to the inferences to be drawn from this material”.[79] On the other hand, Sydney Trains will be prejudiced if it is not permitted to reopen its case by adducing the Proposed New Evidence because it will not be able to present the best evidence available to it that shows that the persons involved in the decision to terminate Ms Annovazzi’s employment believed, based on the material available to them, that Ms Annovazzi had failed to disclose her medical condition and medications, or the consequences of such medical conditions in the pre-employment questionnaires.[80]
[74] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [32]
[75] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [32]
[76] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [24]
[77] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [33]
[78] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [35]
[79] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [36]
[80] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [36]
MS ANNOVAZZI’S SUBMISSIONS
Ms Annovazzi, who appeared without legal representation, submitted that if I were to permit Sydney Trains to present the Proposed New Evidence, a new trial will be required. Ms Annovazzi initially said she intended to seek to file additional evidence herself, which might have a different focus to the case she originally advanced.[81] Ms Annovazzi later said, however, that she did not as yet know whether she would put on evidence if Sydney Trains was permitted to adduce the Proposed New Evidence. Ms Annovazzi also said that she believed some of the findings I had made, given the Proposed New Evidence was incorrect.[82] Ms Annovazzi also made some submissions challenging the authenticity of some of the documents that comprised the Proposed New Evidence.
[81] T51.45
[82] T55.30
My exchanges with Ms Annovazzi on whether I should permit Sydney Trains to adduce the Proposed New Evidence concluded with the following:[83]
HIS HONOUR: Well, can I put it this way? If – and I need to try and get to the end of the hearing today, if I can. Is this the position? That if I permit – . . . I permit them to put on evidence, you will want to put on evidence, and that includes that. But, until that time, you do not want to commit to put on that evidence. Is that a fair way of putting it?
MS ANNOVAZZI: That’s a fair way of putting it.
HIS HONOUR: All right. Thank you.
[83] T68.15
PRINCIPLES GOVERNING REMITTER
Although the FFC did not identify the power pursuant to which they remitted the matter to me, it is clear the FFC did so pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which provides:
Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
. . . .
(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
. . . .
There are a number of observations that may be made about the text of s 28(1)(c) of the FCA Act. The first relates to the word “remit”; that may be taken to mean “send” or “transfer”. Second, there is the grammatical object of “remit”, namely, “the proceeding”; that is a reference to “the proceeding the subject of the appeal”.[84] Third, the proceeding is to be remitted for a particular purpose, namely, “further hearing”. This implies there will be a continuation of the first trial, which, in turn, implies that, on the proceeding being returned to the court from which the appeal was brought, the second trial will be conducted as if the first trial had not ended. Finkelstein J so held in CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2), where his Honour said:[85]
The better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the “further hearing” will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules.
[84] Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167, at [13]
[85] CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479, at [14]-[17]; approved by the Full Federal Court in Fernando v Commonwealth of Australia [2014] FCAFC 181, at [52]-[53]
Given that the hearing on remitter is the continuation of the hearing before the primary judge, the occasion may arise where a party will seek to adduce evidence at the remitter hearing; and this may occur in two circumstances. The first is where the appeal court has disturbed findings of the primary judge, and, for that reason, issues the primary judge had resolved have been reopened. In those circumstances, “[n]o application to reopen for the purposes of determining those issues will be necessary”.[86] As the plurality in Smith v New South Wales Bar Association said in a different, but analogous, context:[87]
Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.
[86] Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105, at [46]
[87] Smith v New South Wales Bar Association (1992) 176 CLR 256, at page 267
The second set of circumstances where a party may seek to adduce evidence is in relation to issues that have not been reopened because of any error the appeal court found the primary judge made. There are, however, two limitations on the power of the court on remitter admitting evidence in those circumstances. The first limitation is absolute. A party will not be permitted to adduce evidence for the purpose of proving a fact that is inconsistent with a finding of fact the appeal court has made and, more generally, with the appeal court’s reasons for judgment. That is so because the hearing on remitter “is to be conducted in light of the decision of the [appeal court] in which the remitter is ordered”.[88] Where an appeal court, being “higher in the hierarchy tha[n] a primary court, determines a matter in a certain way, it must follow that the primary court cannot depart from that determination on remitter”.[89]
[88] Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105, at [45]
[89] Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105, at [45]
The second limitation relates to evidence that a party seeks to adduce to prove a fact that is not inconsistent with the findings and reasoning of the appeal court; and here, a party will require leave to reopen his or her case. The Full Federal Court, in McCarthy v McIntyre, identified the principles that apply to applications for leave to reopen on a remitted hearing:[90]
Where an application is made to reopen on the basis that new or additional evidence is available, it would be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. Even if that hurdle is passed, different considerations will apply depending upon whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered. In the former situation, the primary consideration should be that of embarrassment or prejudice to the other side. However, in the latter situation, the appeal rules relating to fresh evidence provide a useful guide as to the manner in which the discretion to reopen should be exercised - Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 266-7.
[90] McCarthy v McIntyre [2000] FCA 1250, at [30] (Whitlam, Emmett & Hely JJ)
ASSESSMENT OF FACTORS
There are number of barriers to my granting Sydney Trains leave to reopen its case to adduce the Proposed New Evidence. First, although it is the case, as Sydney Trains submits, that the principal question on remitter will be to “redetermine whether [Sydney Trains] engaged in unlawful discrimination by dismissing [Ms Annovazzi] from her employment”, that does not accurately reflect the issues the FFC remitted to this Court, and the directions the FFC gave, or it may be inferred FFC has given, in relation to the determination of those issues. To repeat what I said above, the FFC:
(a)remitted the question why Ms Annovazzi’s dismissal occurred, “having regard to the objective circumstances of the decision-making process”, those circumstances being that “each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi”;
(b)directed the Primary Judge “redetermine” “on that basis”, that is, “that each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi”, “questions as to the appropriate comparator and causation”;
(c)directed that the question of causation be “redetermined having regard to the findings [the FFC] made about the decision-making process and by applying the abovementioned principles”, being the principles the FFC discussed in paragraphs 194-196 of the FFC Reasons; and
(d)directed that in reconsidering the question of causation in (c) it will be necessary to identify the evidentiary basis on which it is found Sydney Trains dismissed Ms Annovazzi.
Second, Sydney Trains does not address whether, and if so, the extent to which, it will be relying on the Proposed New Evidence for the purpose of proving facts that are inconsistent with any of the FFC and undisturbed findings. The Proposed New Evidence, however, if admitted, has the potential to support findings that are inconsistent with at least some of the FFC findings and undisturbed findings. For example, the FFC found that “the correct characterisation of the evidence is that each of TSS, Ms Browning and Ms Samassa were involved in the one decision-making process which culminated in the dismissal of Ms Annovazzi’s employment”. The Proposed New Evidence, however, if admitted, potentially has the tendency to prove that:
(a)the decision to recommend that Ms Annovazzi’s employment be terminated occurred between 2:38 pm on 25 January 2018, when Ms Browning sent an email to Dr Casolin and Mr Lesser (copied to Ms Vlahos and Ms Ball) asking Mr Lesser whether “we [can] proceed to arrange a fitness for duty” for Ms Annovazzi;[91] and 4:37 pm on 25 January 2018, when Ms Browning sent an email to Dr Casolin and Mr Lesser (copied to Ms Vlahos and Ms Ball) stating “Dean we will not be pursuing FFD any further for Ms Annovazzi”;[92] and
(b)given that Ms Vlahos was a recipient of the emails referred to in (a), and the person who endorsed the recommendation contained in the Briefing Note dated 30 January 2018 that Sydney Trains terminate Ms Annovazzi’s employment, Ms Vlahos, either alone or with Mr Lesser, or with Mr Lesser and Ms Browning, decided that it be recommended that Ms Annovazzi’s employment be terminated.
[91] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 87
[92] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 92
Third, although Sydney Trains submits the Proposed New Evidence “overwhelming[ly] supports its case that the relevant decision-makers involved in the decision to terminate [Ms Annovazzi’s] employment did not do so because of her disabilities”,[93] Sydney Trains does not:
(a)identify the persons Sydney Trains will submit the Proposed New Evidence will prove were the decision-makers involved in the decision to terminate Ms Annovazzi’s employment;
(b)the decision-making process Sydney Trains will submit the Proposed New Evidence will prove was carried out by those involved in the decision to terminate Ms Annovazzi’s employment; or
(c)articulate the reasoning on which Sydney Trains will rely for submitting that the Proposed New Evidence, if admitted, will prove that the decision-makers did not terminate Ms Annovazzi’s employment because of her disabilities.
[93] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [33]
Fourth, I do not accept the Proposed New Evidence “will represent the best evidence of the actions and reasons of the relevant persons involved in the decision-making process to dismiss [Ms Annovazzi’s] employment given the events occurred more than 6 years ago and it is unlikely that the witnesses will have an independent recollection of what occurred”.[94] Sydney Trains has not provided evidence, and it does not submit, that at any time before or after 8 November 2018, when Ms Annovazzi commenced this proceeding, Sydney Trains obtained or attempted to obtain evidence from persons who were or who may have been involved in the events that led to Sydney Trains deciding to terminate Ms Annovazzi’s employment. There is therefore no basis for submitting, as Sydney Trains submits, that it is unlikely that any such persons will have an independent recollection of what occurred. In any event, whether such witnesses do have an independent recollection is a matter that would only arise as an issue if each of those persons was called as a witness and he or she deposed or otherwise said on oath he or she does not have an independent recollection; and whether such witnesses do or do not have any independent recollection would be a matter to be determined after Ms Annovazzi would have an opportunity to cross-examine them.
[94] Respondent’s Outline of Submissions to Support Application to Reopen its Evidentiary Case, [35]
Fifth, Sydney Trains has not given an adequate explanation for not having produced the Proposed New Evidence, not only before the trial of the matter, but also before the hearing of the appeal. The evidence reveals that at the time its solicitor, Ms Sharp, drafted Ms Samassa’s affidavit, Ms Sharp had requested Sydney Trains search for emails to and from Ms Samassa, TSS, and Dr Casolin, but the request for that search was not followed up. Moreover, there is no evidence that at any time a lawyer or another person interviewed or attempted to interview Mr Lesser or Ms Vlahos to obtain information of their involvement in the process that led to Sydney Trains terminating Ms Annovazzi’s employment. That is so, even though Ms Annovazzi commenced this proceeding on 8 November 2018; Sydney Trains filed a defence on 8 February 2019 and a defence to the amended statement of claim on 15 March 2019; and, according to the affidavit Ms Sharp made, Ms Samassa was an employee of Sydney Trains until 7 August 2020, and Mr Lesser was an employee with TSS until around 12 November 2021. Further, there is no evidence Sydney Trains attempted to contact Ms Vlahos (who left Sydney Trains in around October 2018) or Ms Browning (who left Sydney Trains in around November 2018) to determine whether they would be willing to give a statement or make an affidavit.
There are, however, factors that favour my granting Sydney Trains leave to adduce the Proposed New Evidence. First, it is preferable that a judgment be given on the basis of all relevant available evidence parties are in a position to adduce. There is no question that the Proposed New Evidence is at least potentially relevant to the issues the FFC has remitted to me. I say “potentially” because, as I have already noted, the scope of any leave to reopen is limited by the FFC findings and the undisturbed findings, at least to the extent the FFC findings are based on the undisturbed findings. The Proposed New Evidence will be relevant only to the extent Sydney Trains does not rely on it to seek to prove facts that are inconsistent with the FFC findings and any undisturbed findings on which the FFC findings are based. Second, assuming the Proposed New Evidence is relevant to issues arising on remitter, given the FFC findings, it is unlikely that the admission of the evidence will prejudice Ms Annovazzi. As Sydney Trains submits, Ms Annovazzi will be entitled to make submissions as to the inferences to be drawn from the Proposed New Evidence.
DETERMINATION
On balance, I consider the interests of justice favours my granting Sydney Trains leave to adduce the documents that comprise the Proposed New Evidence. Given, however, the Proposed New Evidence, if admitted, may have the tendency to prove facts that may be inconsistent with one or more of the FFC findings, or with one or more of the undisturbed findings on which the FFC findings rely, I propose to grant Sydney Trains leave to adduce the documents that comprise the Proposed New Evidence on terms. Those terms are that by 28 April 2025, or by such later date as Sydney Trains may reasonably request, and the Court grants, Sydney Trains files and serves submissions in relation to the remitter hearing in which, at the very least, Sydney Trains:
(a)identifies each of the “previous representations” (as that expression is used in the Evidence Act 1995 (Cth)) Sydney Trains will submit is conveyed by the documents that comprise the Proposed New Evidence, and on which it will rely; and to the extent Sydney Trains will submit that any previous representation arises by implication, identify the matters on which Sydney Trains will rely for the implication;
(a)identifies each finding of fact (Submitted Finding) Sydney Trains submits the Court ought to make wholly or partly on the basis of the previous representations it identifies pursuant to (a), and the matters on which Sydney Trains will rely for so submitting;
(b)in relation to each Submitted Finding, specifies whether it is or is not consistent with the FFC and undisturbed findings; and
(c)to the extent Sydney Trains seeks to rely on a Submitted Finding that is inconsistent with any one or more of the FFC or undisturbed findings, identifies the FFC or undisturbed finding with which the Submitted Finding will be said to be inconsistent, and states the ground on which Sydney Trains submits it would be open to this Court on remitter to make a finding that is inconsistent with the FFC or undisturbed finding.
APPLICATION TO BE RELEASED FROM HARMAN UNDERTAKING
Ms Annovazzi applies for leave to be released from what Ms Annovazzi describes as the “Harman Undertaking” in relation to two sets of documents. The first are documents Sydney Trains produced to Ms Annovazzi during the hearing of this proceeding on 28 February 2022 in answer to a call for production.[95] The principal document is a report dated 19 July 2018 Dr Nicola Gates, a clinical neuropsychologist, prepared in relation to Ms Annovazzi. The second set of documents are documents Dr Gates produced in answer to a subpoena.[96] The documents include the report dated 19 July 2018, and email correspondence between Dr Casolin and Dr Gates in July 2018 and June 2019. Ms Annovazzi says she seeks leave to use the documents in support of a claim for professional misconduct Ms Annovazzi wishes to make Dr Casolin and Dr Gates in relation to the post-employment medical fitness assessments to which Ms Annovazzi says she was subjected; and Ms Annovazzi further intends the documents in support of a complaint she intends to make to the Sydney Trains to the National Rails Safety Commissioner. Ms Annovazzi has set out the matters on which she relies in written submissions.
[95] MFI1
[96] MFI2
The “Harman principle” is the name given to the principle that is associated with the speeches of the House of Lords in Harman v Secretary of State for the Home Department, namely, that a party to a proceeding who, through discovery or subpoena or a like process, has compelled another party or person to produce documents, can only use the documents that have been produced for the purpose of the proceeding.[97] The plurality in Hearne v Street stated the Harman principle as follows (footnotes omitted):[98]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
[97] Harman v Secretary of State for the Home Department [1983] 1 AC 280
[98] Hearne v Street [2008] HCA 36, at [96]
The obligation imposed by the Harman principle is expressed in terms of an implied undertaking to the court:[99]
Imposed by law the obligation is formulated as arising from an undertaking exacted by the court from the party and his solicitor to whom the documents are disclosed. It is the condition upon which discovery is ordered.
[99] Harman v Secretary of State for the Home Department [1983] 1 AC 280, at page, quoted with approval in Hearne v Street [2008] HCA 36, at [105]
Being an undertaking to the court, the court may release the person bound by the undertaking; but the court may only do so if “special circumstances” are shown to exist. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd Wilcox J examined what is required to show “special circumstances”:[100]
For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court”s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[100] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472, at [26]
Ms Annovazzi is bound by a Harman undertaking in relation to the two sets of documents I have identified; and I am not satisfied Ms Annovazzi has demonstrated any special circumstances that would warrant my releasing her from that undertaking. Although Ms Annovazzi makes a number of complaints, I am unable to identify from the material on which she relies any reasonably coherent articulation of the misconduct Ms Annovazzi says the documents show or arguably show Dr Gates or Sydney Trains engaged in.
DISPOSITION
I propose to:
(a)dismiss Ms Annovazzi’s application that she be released from the Harman undertaking in relation to the two sets of documents;
(a)grant Sydney Trains leave to adduce into evidence at the hearing of the issues the FFC has remitted to this Court the documents that comprise the Proposed New Evidence, subject to the terms I have identified;
(b)order that Ms Annovazzi may file and serve written submissions and any affidavit in relation to the issues that have been remitted by 19 May 2025 or at such later date as Ms Annovazzi may reasonably require; and
(c)list the matter for a directions hearing at 9:30 am on 27 May 2025, or at such other time and date as is convenient to the parties and to the Court.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 4 April 2025
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