Dye v Commonwealth Securities Limited [2010] FCA 720
Citation:
Dye v Commonwealth Securities Limited [2010] FCA 720
Parties:
VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED
File number:
NSD 1165 of 2008
Judge:
KATZMANN J
Date of judgment:
9 July 2010
Date of corrigendum:
23 August 2010
Supplementary reasons for judgment:
23 August 2010 – Dye v Commonwealth Securities Limited (No 3) [2010] FCA 903
Catchwords:
PRACTICE AND PROCEDURE – pleadings – amendment – leave sought to amend statement of claim after proceeding listed twice for trial – leave sought to add two new claims – application of case management principles in s 37M and s 37N of the Federal Court of Australia Act – need for explanation for delay – whether leave to amend to add arguable claim may be refused under cases management principles – whether leave to amend may be refused where pleading inadequate or embarassing – joinder of cause of action under O 6 r 1 of the Federal Court Rules – whether leave to join arguable claim may be refused under case management principles
HUMAN RIGHTS – Discrimination – sex discrimination, sexual harassment, disability discrimination and victimisation in employment – scope of applications under s 46PO of the Australian Human Rights Commission Act 1986 – whether acts alleged to constitute discrimination were the same or substantially the same as acts subject of the terminated complaint to the Australian Human Rights Commission
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dye v Commonwealth Securities Limited [2010] FCA 720
Case
[2010] FCA 720
Decision Date
CaseChat Overview and Summary
The applicant, Dye, brought proceedings against the respondent, Commonwealth Securities Limited, in relation to a number of claims of discrimination, sexual harassment, disability discrimination, and victimisation in employment. The matter was before the Federal Court for the purpose of determining an application for leave to amend the statement of claim to include two new claims and to join a new cause of action. The court had to consider the principles of case management and the circumstances in which leave to amend pleadings may be refused, as well as the scope of applications under s 46PO of the Australian Human Rights Commission Act 1986.
The court held that leave to amend pleadings may be refused if it would result in an unacceptable delay or if the proposed amendment is not arguable or would be embarrassing. The court further held that joinder of a new cause of action may be refused under case management principles if it would result in an unacceptable delay or if the proposed cause of action is not arguable. In this case, the court found that the proposed amendments were not arguable and would have resulted in an unacceptable delay. The court also found that the acts alleged to constitute discrimination were not the same or substantially the same as the acts subject of the terminated complaint to the Australian Human Rights Commission.
The court refused the application for leave to amend and join the new claims and cause of action. The court ordered that the parties bring in short minutes setting out the orders reflected in these reasons within seven days and that the applicant pay the respondent’s costs of the motion. The court held that the proposed amendments were not arguable and would have resulted in an unacceptable delay. The court also held that the acts alleged to constitute discrimination were not the same or substantially the same as the acts subject of the terminated complaint to the Australian Human Rights Commission.
Orders
Orders of the court
1. The parties bring in short minutes setting out the orders reflected in these reasons within seven days.
2. The applicant pay the respondent’s costs of the motion.