Chadwick v State of New South Wales (No 5)

[2024] FCA 1295

FEDERAL COURT OF AUSTRALIA

Chadwick v State of New South Wales (No 5) [2024] FCA 1295

File number:

NSD 1307 of 2020

Judgment of:

KENNETT J

Date of judgment:

8 November 2024

Catchwords:

PRACTICE AND PROCEDURE – where applicant seeks leave to file proposed further amended concise statement – where amendments seek to rely on further evidence for which leave has not been sought – where amendments seek to make collateral attacks on New South Wales Civil and Administrative Tribunal decisions – where amendments are not material facts – where amendments have no utility – where applicant raises allegations not within the scope of the applicant’s complaint to the Australian Human Rights Commission – application of s 46PO of Australian Human Rights Commission Act 1986 (Cth)

Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO

Racial Discrimination Act 1984 (Cth)

Sex Discrimination Act 1984 (Cth)

Federal Court Rules 2011 (Cth) r 16.43

Housing Act 2001 (NSW) s 57

Residential Tenancies Act 2010 (NSW) s 41

Cases cited:

Chadwick v State of New South Wales (No 4) [2024] FCA 651

Hanson v Burston [2022] FCA 1234

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

41

Date of hearing:

19 August 2024

Counsel for the applicant:

M Dulhunty

Solicitor for the applicant:

Direct access brief

Counsel for the respondents:

R Lee

Solicitor for the respondents:

MinterEllison

ORDERS

NSD 1307 of 2020

BETWEEN:

SANDRA-ANNE NGAONE (NONI) CHADWICK

Applicant

AND:

STATE OF NEW SOUTH WALES

First Respondent

NEW SOUTH WALES LAND AND HOUSING CORPORATION

Second Respondent

ORDER MADE BY:	KENNETT J
DATE OF ORDER:	8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.   The applicant be refused leave to file her proposed further amended concise statement.

2.   The proceeding be listed for case management and argument on the costs issues, on a date to be advised.

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

REASONS FOR JUDGMENT

KENNETT J:

1. The procedural history of this matter is set out in a judgment delivered on 20 June 2024: Chadwick v State of New South Wales (No 4) [2024] FCA 651 at [1] to [28] (Chadwick No 4).

2. The applicant made a complaint to the Australian Human Rights Commission (AHRC) on 30 May 2019 concerning what she perceived to be adverse treatment of her in connection with her tenancy of a public housing property in New South Wales. The complaint was terminated by a delegate of the President under s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) on 7 October 2020, on the ground that there was no reasonable prospect of the matter being settled by conciliation. The applicant commenced this proceeding, by an originating application filed on 8 December 2020, pursuant to s 46PO of the AHRC Act.

3. In Chadwick No 4 I considered an application by the respondents to strike out parts of the applicant’s amended concise statement (ACS), while postponing consideration of an application for leave to file a Further Amended Concise Statement (the PFACS) which had been foreshadowed in December 2023 and filed on 25 March 2024. I ordered that some specific paragraphs of the ACS be struck out.

4. The applicant maintained her application for leave to file the PFACS. A revised version of the PFACS was provided on 8 July 2024 in the light of the orders in Chadwick No 4. My reasons, set out below, refer to that revised version of the PFACS.

   The PFACS generally

5. In Chadwick No 4 at [30] I observed that the ACS was in many respects an unsatisfactory document. The PFACS is to be welcomed to the extent that certain paragraphs of the ACS have been deleted, which I take to mean that they are not pressed. However, in other respects it does not advance matters.

6. Consideration of the proposed amendments has not been assisted by the fact that the amendments have not been marked up in the documents provided to the respondents and the Court. Counsel for the applicant explained that when she had attempted to mark up the amendments the document became extremely confusing. (The respondents’ submissions observed, however, that the earlier version of the PFACS had been provided in mark-up, and this was deficient because the marking up had not been done accurately—not because of any fundamental difficulty in doing so.) In some instances the paragraph numbering is confusing and inconsistent. For example, the PFACS includes paragraphs numbered 17 and 18 which simply say “deleted”, followed by other paragraphs also numbered 17 and 18; meanwhile, PFACS [21] and [24] also read “deleted” and the numbers are not repeated. A numbering error in the ACS, whereby numbers 57 and 58 were repeated (and all subsequent paragraphs were thus incorrectly numbered) has been fixed in the PFACS but without any annotation drawing attention to the changed numbers. These are small points but they have contributed to an unnecessarily complicated task.

7. I have worked through the ACS and the PFACS side by side and attempted to identify all of the proposed changes. It appears that in many instances particular sentences or clauses have been redrafted, seemingly in an attempt to improve their style. These changes may well have been difficult to mark up manually using underlining and striking through (although widely used word processing applications can perform this function). Further, many of the proposed changes to which I am presently referring do not seem to change the content of the allegations in any meaningful way. There are two points to be made about this.

   (a)Changes of style rather than substance achieve nothing except to generate unnecessary costs to the parties and an unnecessary burden on the finite resources of the Court. Such changes should not be made to a document that has been filed.

   (b)On the other hand, against the possibility that some different shade of meaning is introduced by an amendment (or a series of amendments), opposing parties are entitled at least to have their attention drawn in a clear way to the particular words that are proposed to be inserted or deleted. If it is thought to be worthwhile to redraft a sentence in a pleading or a concise statement, it is not burdensome to strike the whole sentence through and insert the proposed replacement with underlining.

8. In the remainder of these reasons I deal with all of the proposed amendments in the PFACS which I have been able to identify and which appear to have potential significance.

   Evidence proposed to be adduced from Ms Darlene Hadley

9. Ms Hadley is a fellow public housing tenant, known to the applicant for some time, whose experiences the applicant seeks to rely on in order to prove that she has been treated differently. Amendments referring to Ms Hadley in this connection are proposed to be made in PFACS [18(e)], [20.3(a)], [42.5], [44], [52(b)], [55], [61], [64.1] and [67].

10. The applicant accepts, in an affidavit sworn on 22 March 2024, that she was aware of Ms Hadley’s evidence from about 2018. In this proceeding, the applicant was ordered in March 2022 to complete the filing her evidence in chief by 15 April 2022. That time was extended and evidence was filed up to 16 May 2022. The applicant also asserts that at relevant times she was not legally represented and that she did not understand the significance of Ms Hadley’s evidence until May 2023. However, the applicant clearly did have the assistance of counsel at least by May 2022, at which point she was also seeking to rely on “points of claim” which constituted the precursor of her original Concise Statement. The events which are the subject of this proceeding occurred between 2018 and 2019; the applicant’s original complaint to the AHRC was made on 30 May 2019; and this proceeding was commenced in December 2020. There must come a time when the raising of new arguments ends and the case goes to trial. To the extent that evidence proposed to be adduced from Ms Hadley goes to issues not already identified in the ACS, I am not satisfied that there is a sufficient basis for expanding the case so as to let that evidence in.

11. It may be arguable that some or all of the evidence sought to be adduced from Ms Hadley goes to matters that are already in issue. However, to the extent that the evidence is relevant to existing issues, amendment of the ACS is not necessary. Reception of the evidence comes down to whether the applicant should be granted leave to rely on further affidavits.

12. At the time the applicant’s interlocutory application was argued, an affidavit affirmed by Ms Hadley on 26 July 2023 was before the Court as an annexure to an affidavit read by the applicant. This was, at that stage, the only reliable indication of the evidence Ms Hadley might give. On this basis, the respondents objected to some of the amendments on the additional basis that they were not supported by her evidence.

13. Since then, six affidavits (including one affirmed by Ms Hadley) were filed by the applicant between 19 September and 23 October 2024, while judgment was reserved on the application for leave to file the PFACS. Each of these affidavits (except the most recent one) bears the file number of this proceeding and of another proceeding involving the present parties (NSD 1380 of 2023). An order had been made for the filing of evidence by 30 September 2024 in the other proceeding but not in this proceeding, and no decision has yet been made as to whether the proceedings should be heard concurrently.

14. It should not be assumed that these affidavits will be allowed to be relied upon in this proceeding. In any event, the applicant has not sought to re-open her interlocutory application or asked me to have regard to Ms Hadley’s latest affidavit in connection with that application. I have not done so. The key point is that, whatever the precise content of Ms Hadley’s evidence might ultimately be, the applicant requires both leave to file that evidence and leave to expand the scope of the facts in issue by amending the ACS. I will need to hear argument in due course as to whether further evidence should be permitted. As will be apparent, I am not persuaded that leave should be granted to amend the ACS in this respect.

    Amendment to ACS [14]

15. ACS [14] alleges that, in breach of an agreement, the respondents commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT). A proposed amendment to this paragraph would expand it to include an allegation that the respondents “obtained an order” requiring the applicant to pay additional rent. This would convert the paragraph into a collateral attack on orders by NCAT, which should not be permitted for reasons noted in Chadwick No 4 at [46]-[50].

    Notification of appeal rights

16. Several of the proposed amendments which expressly rely on the evidence of Ms Hadley, and others as well, complain that steps were taken against the applicant without notifying her that she could appeal to the Housing Appeals Committee (HAC) or without allowing her time to produce a budget. The respondents submit that these allegations were not within the scope of the applicant’s complaint to the AHRC and therefore cannot be raised now as a result of s 46PO(3) of the AHRC Act. The applicant submits to the contrary, but without pointing to any particular passage in the documents that she submitted to the AHRC where the points are distinctly raised. My review of those documents has not brought to light any references to these topics. I am therefore not satisfied that these complaints are cognisable as part of the present proceeding.

17. For this reason I would not allow:

    (a)the insertion of PFACS [18(e)];

    (b)the proposed insertion in ACS [20.3(a)];

    (c)three sentences proposed to be added at the end of ACS [22(d)];

    (d)an insertion in ACS [25] referring to appeal rights;

    (e)a reference to appeal rights proposed to be added to ACS [30];

    (f)the proposed addition to ACS [42.5] in so far as it refers to appeal rights; and

    Amendment to ACS [22(d)]

18. ACS [22] alleges that the conduct of the respondents described in ACS [20] constituted unlawful discrimination. Sub-paragraphs (a) to (f) particularise that assertion. Sub-para (d), with the proposed amendment marked up, currently reads as follows:

    because of the significant unequal bargaining power between the Respondents and the disadvantaged tenants allows with the Respondents being able to create a situations where the Respondents can to take capriciously the Applicant to NCAT multiple times, and threatening to make the Applicant homeless multiple times. This conduct of the Respondents was not only repeated within the short period in September to November 2018 but was continued throughout 2019 and 2020. Further, this conduct was done without the Applicant being given her appeal rights to the HAC. A tenant is supposed to be allowed to appeal to the HAC before proceedings are taken in NCAT. Joshua Sansom, Carolyn Morice and Shannon Hill knew that the Applicant had not been allowed to exercise her appeal rights to the HAC before taking proceedings against the Applicant in NCAT;

19. The respondents specifically oppose two aspects of this amendment.

20. First, the addition of “multiple times” connotes that multiple threats to make the applicant homeless were made. However, the conduct described in ACS [20] (which ACS [22] is seeking to characterise as unlawful) appears to contain only one act that can be seen as a threat to make the applicant homeless: the issue of a notice of termination. The amendment thus introduces inconsistency. I agree that the amendment should not be allowed for this reason.

21. Secondly, the three sentences sought to be added to ACS [22(d)] are said to have three problems.

    (a)As noted above, the issue was not within the scope of the applicant’s complaint to the AHRC.

    (b)These sentences allege a state of mind on the part of particular individuals: ie, that the applicant had “not been allowed” to exercise her appeal rights. In the case of a pleading, such an allegation requires particulars (Federal Court Rules 2011 (Cth) r 16.43). Although a concise statement is not a pleading, the seriousness of the allegation calls for the allegation and its basis to be identified with specificity so that the respondent can meet it at trial: cf eg Hanson v Burston [2022] FCA 1234 at [152] (Bromwich J).

    (c)There is no explanation of how the alleged omission to afford the applicant her “appeal rights” constituted unlawful discrimination (eg, whether or in what respect she was treated less favourably than other tenants in this respect and for what reason).

22. At least the first and second of these points are correct. The amendment should not be allowed.

    Amendment to ACS [25]

23. ACS [25] alleges that conduct identified in several earlier paragraphs breached specified provisions of the Sex Discrimination Act 1984 (Cth) (the SDA) and the Racial Discrimination Act 1984 (Cth) (the RDA) on the basis that the respondents “have treated the Applicant less favourably than other tenants in the same position by threatening to evict her rather than working with her to resolve her hardship and by harassing her and by imposing unreasonable terms and conditions”. As proposed to be amended, the relevant part of ACS [25] would read:

    … treated the Applicant less favourably than other tenants in the same position by threatening to evict her rather than informing her of her appeal rights to the Housing Appeals Committee (HAC) or working with her to resolve her hardship and by harassing her and imposing unreasonable terms and conditions. Instead, the Respondents harassed her and imposed unreasonable terms and conditions on her and on her occupancy and tenancy of the Property. The only difference between the Applicant and other tenants in arrears is that the Applicant is one of the few, if not the only tenant, in the area who is a strong ethnic Māori woman.

24. The first of these proposed insertions falls foul of s 46PO(3) of the AHRC Act for reasons outlined above.

25. The second proposed insertion introduces the concept of harassment into a paragraph which seems otherwise to be directed at unequal treatment. The allegation is not linked in any clear way to the conduct pleaded in the earlier paragraphs referred to, or to identified provisions of the relevant legislation. It would introduce further confusion into the case.

    Amendment to ACS [30]

26. ACS [30] refers to a NCAT hearing. The PFACS would add two allegations, namely:

    (a)a Mr Joshua Sansom attended NCAT “specifically for the Applicant’s matter only”; and

    (b)the proceedings were commenced without the applicant having been notified of her appeal rights.

27. The second of these proposed insertions has been mentioned above.

28. As to the first proposed insertion, the respondents submit that this is not a material fact; no cause of action arises from it. The applicant’s submissions do not attempt to explain its relevance. While it might be said that the allegation therefore does not matter (and the respondents need not waste effort seeking to disprove it), it is nevertheless vexatious and should not be allowed as a specific amendment.

    Amendment to ACS [48]

29. ACS [48] alleges that on numerous occasions the respondents failed to provide proper notice of increases in rental amounts, in breach of s 41 of the Residential Tenancies Act 2010 (NSW). ACS [49] to [51] elaborate and give an example. The link between this allegation and Commonwealth anti-discrimination legislation seems to be provided by the opening words of ACS [52], which reads:

    In those circumstances, re-listing the matter before NCAT was oppressive, unconscionable, intimidatory, discriminatory and humiliating in breach of [identified provisions of the SDA and the RDA] …

30. ACS [52(a)-(c)] seek to explain this far-reaching allegation.

31. The proposed amendment to ACS [48] would add allegations that:

    (a)“[b]y comparison, other tenants were issued letters informing them of rent increases” and other matters; and

    (b)the failure to give proper notice was also a breach of s 57(3) of the Housing Act 2001 (NSW).

32. These proposed insertions are of no utility in the present case and should not be allowed for that reason. Contravention of a New South Wales statute, without more, does not assist in establishing any breach of the RDA or the SDA. Meanwhile, the proposed comparator (“other tenants”) makes no reference to any aspect of race or gender.

    Relief

33. ACS [69]-[79] (which the PFACS would renumber as [71]-[80], rectifying the numbering error in the ACS referred to above) list the relief that the applicant seeks. This comprises damages (including aggravated damages and various out of pocket expenses), interest, a public apology and costs.

34. The PFACS would delete the claim for aggravated damages, which I therefore take to be no longer pressed, and add three new prayers for relief: “rectification” of the applicant’s rental record (PFACS [81]), a sum reflecting rent said to have been overcharged between October 2016 and December 2018 (PFACS [82]) and a written reference stating that the applicant has been an excellent tenant (PFACS [83]).

35. The respondents specifically resist the inclusion of PFACS [82] on the ground that the period referred to falls largely outside the period of the conduct about which the applicant originally complained to the AHRC. The respondents are correct in this respect and, if I were otherwise minded to allow the PFACS to be filed, I would exclude [82] from that leave. Whether the other orders sought in the ACS and sought to be added to it come within the Court’s remedial power under s 46PO(4) of the AHRC Act (and are appropriate to be made) can appropriately be dealt with following the trial and in the light of what unlawful discrimination if any has been established.

    Disposition and further issues

1. For these reasons, leave to file the PFACS will be refused.

2. The respondents have not expressly sought their costs of the applicant’s interlocutory application. I have not assumed that those costs are sought. Counsel for the applicant indicated orally that she sought the costs of her interlocutory application, but the application has been unsuccessful. Any party who wishes to seek an order in relation to the costs of the interlocutory application in the light of my conclusion above may raise the issue when the matter is next before the Court.

3. In Chadwick No 4 I reserved the costs of the respondents’ interlocutory application to strike out the ACS (which was partially successful). Counsel for the applicant also indicated that her client seeks the costs of that interlocutory application. I will also hear from the parties on this issue when the matter is next before the Court.

4. The fairly detailed consideration of the ACS, which was necessitated by the unsatisfactory form of the PFACS, has brought to light passages in the ACS which warrant further attention.

   (a)ACS [18] (including sub-paras (a), (b) and (d)), [34(b)] and [52] (including sub-paras (a) to (d)) appear at first blush to constitute collateral attacks on decisions by NCAT that should be struck out for the reasons noted in Chadwick No 4 at [46]-[50].

   (b)ACS [42.6] and [47.8] contain references to denial of appeal rights, or failure to inform the applicant about appeal rights. Like the proposed additions discussed at [17] above, these appear to fall outside the scope of the applicant’s complaint to the AHRC.

5. Attention was drawn to some of these passages by the submissions of the respondents; however, there is at present no formal application to strike them out. I will therefore not make any order as to these aspects of the ACS at present.

6. I will list the matter for case management, and argument on the costs issues noted above, on a date to be advised.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.

Associate:

Dated:       8 November 2024