Dye v Commonwealth Securities Limited - [2010] FCA 720

FEDERAL COURT OF AUSTRALIA
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

Legislation: Australian Human Rights Commission Act 1986 (Cth), ss 3, 46PA, 46PF, 46PH, 46PO(3)
Disability Discrimination Act 1992 (Cth), ss 42, 123
Fair Trading Act 1987 (NSW) ss 42, 46
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Federal Court Rules O 6 r 1, O 6 r 6, O 11 r 2, O 11 r 16, O 13 r 2
Human Rights Legislation Amendment Act (No. 1) (1999) (Cth)
New South Wales Barristers’ Rules r 37
Revised Professional Conduct and Practice Rules 1995 r A.37
Sex Discrimination Act 1984 (Cth), ss 94, 106, 110
Trade Practices Act 1974 (Cth) ss 52, 53B

Cases cited: Advanced Switching Services Pty Ltd v State Bank of New South Wales t/as Colonial State Bank (2001) ATPR ¶41-848 disapproved
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 applied
Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 cited
Austin v Civil Aviation Authority (1994) 50 FCR 272 cited
Australian Securities and Investments Commission v Axis International Management Pty Ltd [2009] FCA 250 cited
Bartlett v Swan Television & Radio Broadcasting Pty Ltd (1995) ATPR 41-434 cited
BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 (PC) cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 applied
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 cited
Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 considered
Chan v Sellwood [2009] NSWSC 1335 cited
Clyne v The New South Wales Bar Association (1960) 104 CLR 186 cited
Courtaulds Northern Textiles v Andrew [1979] IRLR 84 cited
Dey v Victorian Railways Commissioner (1949) 78 CLR 62 cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 cited
D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 cited
East, Re; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 applied
Eastwood v Magnox Electric plc; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503 cited
Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852 disapproved
Gunns Ltd v Marr [2005] VSC 251 cited
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited
Hewitt v ATP Tour Inc [2004] SASC 286 cited
Hosking v Runting [2005] 1 NZLR 1 considered
Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 cited
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 considered
Malik v Bank of Credit and Commerce International S.A. (in compulsory liquidation); Mahmud Bank of Credit and Commerce International S.A. (in compulsory liquidation) [1998] AC 20 considered
Moorev Inglis (1976) 9 ALR 509 considered
NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 cited
NRMA v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 cited
Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388 cited
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited
Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 cited
Qantas Airways Limited v Gama [2008] FCAFC 69 cited
P v D [2000] 2 NZLR 591 cited
Qantas Airways Ltd v Gama [2008] FCAFC 69 cited
R v The Associated Northern Collieries (1910) 11 CLR 738 cited
Ratcliffe v Evans [1892] 2 QB 524 cited
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198 considered
Russell Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; (2008) 72 NSWLR 559 considered
Shiels v James [2000] FMCA 2 cited
Smith Kline & French Laboratories (Aust) Ltdv Secretary, Department of Community Services and Health (1990) 22 FCR 73 cited
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 not followed
Taylor v Morrison [2003] FMCA 79 considered
Travers v State of New South Wales [2000] FCA 1565 applied
Webster v Lampard (1993) 177 CLR 598 cited

Date of hearing: 11 March and 30 April 2010

Date of last submissions: 17 May 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 333

Counsel for the Applicant: Mr P E King

Solicitor for the Applicant: Turner Freeman

Counsel for the Respondent: Ms K Eastman with Ms G Wright

Solicitor for the Respondent: Freehills

FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2010] FCA 720
CORRIGENDUM
1.In paragraph 59, delete the words “add to” in the third sentence and substitute for them the word “replace”, and after the words “Messrs Blomfield and Selvarajah”, also in the third sentence, add the words “with a general allegation that the respondent was vicariously liable for the acts of”.
2.In paragraph 61, after the words “seeks to” in the second sentence add the words “restore the reference to Mr Blomfield and Mr Selvarajah and to”.
3.In paragraph 65, after the word “amendment” in the first sentence add the words “in so far as it restores the reference to Messrs Blomfield and Selvarajah”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Katzmann.
Associate:
Dated: 23 August 2010

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1165 of 2008

BETWEEN:
VIVIENNE LOUISE DYE
APPLICANT

AND:
COMMONWEALTH SECURITIES LIMITED
Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

9 JULY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
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.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1165 of 2008

BETWEEN:
VIVIENNE LOUISE DYE
Applicant

AND:
COMMONWEALTH SECURITIES LIMITED
Respondent

JUDGE:

KATZMANN J

DATE:

9 JULY 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Table of contents
Introduction
Background
History of the proceeding
Amending a pleading – the principles
Onus of proof
The proposed amendments
Category 1 documents: amendments said to be by way of clarification
Category 2 & 3 amendments: further particulars and sexual assault
Category 4: the new causes of action
The claim for injurious falsehood
Breach of privacy
Category 5: Amendment to damages claims
Category 6: Uncontentious amendments
Costs
Orders
Introduction

The principal proceeding arises from a complaint of sexual harassment, sex discrimination, disability discrimination and victimisation that the applicant originally lodged with the Australian Human Rights Commission, then known as the Human Rights and Equal Opportunities Commission (HREOC), on 2 January 2008.
This is an application for leave to amend the statement of claim commenced by notice of motion filed in court on 11 March 2010, supported by an affidavit sworn by the applicant herself, on 15 February 2010, and filed with the motion. The amendments are vast and numerous. They significantly expand the scope of the current proceeding. For the most part they are opposed for one or more of the following reasons:
(a)the application has been made too late;
(b)the reasons given for the delay are inadequate;
(c)they raise wholly new claims not previously agitated because of a deliberate tactical decision not to do so or which it is inconvenient to include in these proceedings;
(d)in some cases they run foul of the statutory bar set out in s 46PO(3) of the Australian Human Rights Commission Act, formerly the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (AHRC Act); and
(e)the pleading is inadequate and embarrassing.
Background
The proceeding came to this Court via an application filed on 24 July 2008 after a delegate of the President of HREOC terminated the complaint under s 46PH(1)(i) of the AHRC Act by notice dated 26 June 2008 because she was satisfied there was no reasonable prospect of the matter settling by conciliation.
In her application the applicant made claims of:
(a)Misleading and deceptive conduct including misleading conduct in relation to employment, relying on ss 52 and 53B of the Trade Practices Act 1974 (Cth) and ss 42 and 46 of the Fair Trading Act 1987 (NSW);
(b)Breaches of contract;
(c)Breaches of the Sex Discrimination Act 1984 (Cth) (SDA); and
(d)Breaches of the Disability Discrimination Act 1992 (Cth) (DDA).
The applicant was an employee of the respondent, Commonwealth Securities Ltd (known as CommSec), a wholly owned subsidiary of the Commonwealth Bank of Australia (CBA). She commenced employment on 7 March 2005 and ceased on 9 November 2007 when, according to the respondent, she was made redundant. She was first employed as a Business Relations Manager in the Finance and Risk Management section of Premium Banking Services. On 16 May 2006 she was transferred to Business Development Administration where she came under the supervision of [X]. From a date in November the same year she was transferred to Local Business Banking, reporting to Anand (Arnie) Selvarajah. Michael Blomfield was Executive General Manager of that unit. In this proceeding the applicant alleges that [X] and Mr Blomfield sexually harassed and discriminated against her on the ground of her sex and that all three men victimized her after she made a complaint. She also claims that her employment was terminated because she suffered from a disability within the meaning of the DDA and was treated less favourably than the respondent would have treated someone without her disability. (The nature of the disability was not particularised in the original statement of claim or in the proposed amended version.) In the alternative, she contends that her employment was terminated because she had rejected the advances of Messrs [X] and Blomfield or that it was an act of victimization in retaliation for her complaint about their behaviour.
Within two months of her employment coming to an end the applicant complained to HREOC.
History of the proceeding
On 2 January 2008 the applicant lodged her complaint with HREOC against both the CBA and the respondent (HREOC complaint). The complaint was supported by a statement 181 pages in length (HREOC statement) with a 24 page addendum to her statement. On 11 February 2008 the applicant (through an industrial advocate) provided additional information to HREOC supplementing her original statement.
On 14 April 2008 she informed HREOC (again through the industrial advocate) that she wished to add [X], Michael Blomfield, Arnie Selvarajah and Michael Carroll (an employee of the CBA) as respondents to her complaint and listed in dot point form the nature of her complaints against them. On 24 April 2008 a delegate of the President of HREOC granted her leave pursuant to ss 46PA and 46PF of the AHRC Act to amend the complaint to include the additional information and allegations and to add the additional respondents.
In her complaint the applicant alleged that [X] and Mr Blomfield had made unwelcome sexual advances to her. She also alleged that [X] had discriminated against her and victimized her by unlawfully terminating her employment because she refused to have sex with him. She made similar allegations against Mr Blomfield. She also alleged that Mr Blomfield and Mr Selvarajah had threatened to dismiss her for performance and behavioural issues, which, she maintained, were baseless.
The respondent denies all the allegations of impropriety.
The proceeding was originally fixed for trial in June last year when it was listed for seven days in September to October of the same year. The hearing dates were vacated, principally because the applicant had been subpoenaed to give evidence for News Limited in defamation proceedings brought again the company by Mr Blomfield, but also because the respondent had not completed its discovery. On 3 December 2009 the proceeding was again listed for hearing, this time in two blocks, from 1 March 2010 for nearly three weeks, and then for two weeks in July. On 17 February 2010 the March hearing dates were vacated. Although on this occasion the application was made by the respondent, it was brought about because of default on the part of the applicant to comply with the Court’s timetable and the applicant’s desire to amend the statement of claim.
The applicant was first ordered to file affidavits from all witnesses by 4pm on 22 May last year. That direction was made by Tamberlin J on 6 February 2009. The applicant failed to comply with the direction. On 3 December 2009 Moore J, who took over the management of the proceeding after Tamberlin J’s retirement, and who fixed the trial dates, made further directions for the filing of affidavit evidence by 4pm on 11 December 2009. The applicant did not comply with these directions either. Still another direction was made on 18 December 2009 that the applicant file and serve evidence by 22 January 2010, backed by a further order that the applicant’s case would proceed only on the basis of evidence filed by that deadline. That direction was also apparently ignored. When the applicant did file an affidavit, so much of it failed to comply with the rules of evidence and of the Court that, rather than waste more court time dealing with objections and requiring the applicant to rewrite the affidavit, I ordered that all the lay evidence in the trial be given orally.
During case conferences in October last year counsel who then appeared for the applicant confirmed that the scope of the claim would be limited to the statement of claim and the particulars. The present application demonstrates just how far the applicant has departed from this position.
The respondent was first notified of the applicant’s intention to amend her statement of claim on 22 January 2010. At that time it was informed that it would include, at least, the addition of two new causes of action: injurious falsehood and breach of privacy. On 3 February, the respondent received a letter from Turner Freeman, the applicant’s current solicitors, enclosing an unfiled notice of appearance and a draft amended statement of claim. On 15 February 2010 – more than three weeks after the respondent was first notified of the applicant’s intention to amend – a copy of the proposed amended statement of claim was served, which went beyond the scope of the version provided to the respondent on 3 February.
Amending a pleading – the principles
A defence was filed in this matter on 23 September 2008. There is no right to amend a pleading after the pleadings are closed. Leave is required. The power to grant leave is subject to O 13 r 2 of the Federal Court Rules (Rules) and s 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
Order 13 r 2 relevantly reads:
(1)Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2)All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
…
(7)An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a)arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b)subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8)Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9)Paragraph (7)(b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
Section 37N of the FCA Act obliges the parties to a civil proceeding before the Court to conduct it in a way that is consistent with the overarching purpose of the civil practice and procedure provisions of the FCA Act and Rules (the overarching purpose). That purpose is described in s 37M:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)       according to law; and
(b)       as quickly, inexpensively and efficiently as possible.
(2)Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a)       the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)       the efficient disposal of the Court’s overall caseload;
(d)       the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Subsection (3) stipulates that the civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose. The “civil practice and procedure provisions” are defined in subs (4) as the Rules and any other provision made by or under the FCA Act or any other Act with respect to the practice and procedure of the Court.

The applicant has conducted this litigation with little or no regard to the overarching purpose.
In Bi v Mourad [2010] NSWCA 17 the NSW Court of Appeal refused leave to appeal from a decision of a Judicial Registrar of the District Court dismissing proceedings because of the plaintiffs’ late reformulation of their case and failure to comply with a deadline for filing an amended (and “quite defective”) pleading. Allsop P observed at [47]:
Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil ProcedureAct. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.
Although these remarks were made in the context of the Civil Procedure Act 2005 (NSW), they apply equally in this Court. They have recently been reinforced by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon). In Aon the plaintiff sought an adjournment and leave to amend its statement of claim to add a substantial new claim after the trial had commenced. Aon was concerned with the ACT civil procedure rules but this Court’s civil procedure regime is not relevantly different.
The plurality in Aon emphasised (at [98]) that, although a just resolution of proceedings remained the paramount purpose of the relevant rule of court stating the objectives of case management [cf. Part VB of the FCA], what is just
[was] to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
Moreover, their Honours went on to say (at [103]), “generally speaking” where one party seeks that a discretion be exercised in his or her favour to the disadvantage of another, an explanation will be required. Where the rules attach importance to minimising delay, in most cases where it occurs a party should explain it. That involves showing that the application is brought in good faith. It also involves bringing to the court’s attention the circumstances giving rise to the amendment, so that they can be weighed against the effects of any delay and the objectives of the court’s rules. The failure to provide such an explanation was fatal in Aon.
The applicant seeks to distinguish Aon because her application to amend was made before the beginning of the hearing and, when she made it, hearing dates had not been fixed. Although each case must be determined on its merits and there are differences between the circumstances here and in Aon, the differences are not as significant as Mr King presented them. What is more, without objection, six weeks have now been allocated for the trial (beginning on 6 September this year) – 12 months after the matter was first set down for hearing – and less than two months away. In any event, it is the principles enunciated in Aon with which the Court is concerned. This application contributed to the vacation of the March hearing dates.
Onus of proof
The applicant invokes the discretion of the Court. It is a discretion to grant, not to refuse, the application. Accordingly, she bears the onus of satisfying the Court that grounds exist for exercising the discretion in her favour: cf. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor) at 544 per Dawson J, 547 per Toohey and Gummow JJ and 551 per McHugh J. There is no entitlement to the orders sought. The respondent does not have to prove anything.
The proposed amendments
The applicant sorted the proposed amendments into six categories. The descriptions are the applicant’s. The categories are:
(a)Category 1: Amendments by way of clarification (originally also said to arise from the defence, a contention abandoned on the second day of hearing);
(b)Category 2: Amendments by way of further particulars;
(c)Category 3: Sexual assault;
(d)Category 4: Injurious falsehood and breach of privacy;
(e)Category 5: Amendment to damages claims;
(f)Category 6: Amendments which are not opposed.
The applicant submits that if the application were allowed it would not be inconsistent with the principles of case management, nor would it disadvantage other litigants, no substantial delay would arise and costs would not be wasted. All that would happen is the respondent would have to put on an amended defence. Whilst this is likely in the case of the uncontentious amendments in category 6 and possibly so with respect to some of the amendments in certain other categories, it is most definitely not the case with the category 3 and 4 amendments.
Category 1 documents: amendments said to be by way of clarification
The applicant relies on O 13 r 2(2) of the Federal Court Rules. She asserts that the proposed amendments are sought to ensure that all issues between the parties are accurately pleaded and do not substantially alter the case the respondent is called upon to meet. The respondent, on the other hand, does not accept that the amendments merely clarify the existing pleading.
I will deal with the proposed amendments seriatim. The amendments are struck through (deletions) or underlined (additions).
The first is to paragraph 12. Paragraph 12 reads:
In or about September 2005, the Applicant was promoted to the position of Marketing Manager, which was at the level of Executive Manager:
Particulars
(i)~~Discussion~~ Communications between the Applicant and Ms Nicola Bradbury, General Manager Business Relations for the Respondent, ~~in or about September 2005~~ on before and after 4 March 2005; and
(ii)Communications between the Applicant and Ms Bradbury in or about September 2005.
Order 11 r 2(a) provides that subject to the Rules:
a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved.
This is such a basic principle it should not be necessary to refer to it. But this pleading pays no regard to it.
The particulars, with or without the amendments, add nothing to the contention in paragraph 12. In any event, the fact of the applicant’s promotion in or about September 2005 – like many of the allegations in the statement of claim – is not a material fact. A fact is material if it is essential to the cause of action, not merely because it might be relevant to it. The expression refers to the fact or combination of facts that give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J. Further, material facts are supposed to be stated in such a way that a defendant can understand how they are material to a cause of action: Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 at [20]. This pleading does nothing of the kind.
Order 12 r 1 commands a party pleading to state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him. The function of particulars is to control the generality of the pleadings and restrict the scope of the evidence that can be led: Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 at 365.
These particulars do neither. They do no more than flag the kind of evidence that might be called to support a collateral fact. They raise more questions than they answer. Because of their imprecision they tease the respondent to request further and better particulars.
In R v The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 Isaacs J said:
I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms “surprise”, but he is not entitled to be told the mode by which the case is to be proved against him.
In the circumstances, I am disposed to strike out the whole of paragraph 12. As I am not invited to do so, I merely refuse leave to amend.
The second amendment in this category is to paragraph 14:
On or about 16 May 2006, the Applicant was offered and on or about 1 June 2006, she accepted employment with the Respondent in the position of Business Analyst at the level of Executive Manager (“May 2006 Contract”). She did not receive a written contract or Performance Planning documentation setting out the terms and conditions governing her employment under the May 2006 Contract:
A.The May 2006 contract took effect as a variation of the March 2005 contract or was a new contract on similar terms:
Particulars
(i)Communications between the Applicant and [X] on or about 24 April, 1 and 16 May, and 1 June 2006; and
(ii)Document titled “Role Summary” issued to the Applicant on 1 June 2006.
I am at a loss to understand the relevance of the assertion that the applicant did not receive a written contract or performance planning documentation (whatever that means). The so-called particulars do not serve the purpose of particulars. I therefore disallow the proposed amendments.
The next proposed amendment is to paragraph 15 to add to the specified express terms of the May 2006 contract a term that the applicant’s annual remuneration would include
(d)education/training costs paid in the amount of $50,000 for the degree of Masters of Law and Legal Practise [sic] at the University of Technology, Sydney:
Particulars
(i)Communications particularised at paragraph 12 above.
The applicant did not press the addition of a further particular.
No explanation has been offered for the delay in pleading this additional allegation. The communications are said to be particularised at paragraph 12. Yet, as I have already observed, what was particularised in paragraph 12 did not amount to particulars. In the circumstances, I refuse the application.
The next amendment is to paragraph 17:
It was an implied term of the May 2006 Contract that neither party would engage in conduct designed, or which is reasonably likely, to seriously damage, or destroy, the relationship of trust and confidence between the parties and/or that there was an implied term of good faith and/or cooperation between the parties in relation in relation to the performance of the contract (“the implied term of trust and confidence”).
Particulars
Implied by law.
The respondent opposes the application, arguing:
This falls into the class of claim that would have to be struck out because the nature of the pleading, the complete lack of particulars about the context in which this clause is said or term is said to arise and the fact that the courts have consistently said that in Australian law the concept of implied terms of this kind into a contract of employment is not generally recognised.
In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 a Full Bench of the Industrial Relations Court of Australia (Wilcox CJ, Marshall and North JJ) considered (albeit obiter) that the law imported into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties without reasonable cause.
There is no doubt that in England there is a good deal of authority to support an implied term of mutual trust and confidence, starting with the decision of the English Employment Appeal Tribunal in Courtaulds Northern Textiles v Andrew [1979] IRLR 84, and it has found favour in the House of Lords. See, for example, Malik v Bank of Credit and Commerce International S.A. (in compulsory liquidation); Mahmud v Bank of Credit and Commerce International S.A. (in compulsory liquidation) [1998] AC 20 and Eastwood v Magnox Electric plc; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503 (Eastwood) where at [5] Lord Nicholls of Birkenhead wrote:
[5] It is a well established principle that a servant owes a duty of loyalty and faithfulness to his master. Thus, in a modern context an employee will be in breach of contract if he “works to rule” in such a way as to frustrate the commercial objective of his contract of employment: Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455. From here it was a short step to recognise that both parties to an employment contract owe a duty to conduct themselves in a way which will enable the contract to be performed. The developed formulation of this duty became, so far as the employer is concerned, that an employer will not, without reasonable and proper cause, conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. This formulation of a wide-ranging “trust and confidence” implied term emerged in the late 1970s and the 1980s in cases such as Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, affirmed [1982] ICR 693.
This analysis supports the current pleading but provides no justification for the proposed amendment. It is well accepted that an employee has a duty of good faith and fidelity towards her or his employer. The question is whether an employer owes a corresponding duty to an employee. In Eastwood, Lord Nicholls appeared to accept that there was an obligation on an employer to act “responsibly and in good faith” as a feature of the implied term of mutual trust and confidence. At [11] his Lordship said:
The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith.
In Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198 Rothman J in the New South Wales Supreme Court held (at [134]) that under the common law of Australia there were implied in a contract of employment two implied terms that:
·The employer would act in good faith to the employee in and about the administration of the contract; and
·The employer would not conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the parties (ultimately repleaded as a duty on the employer not to conduct itself in such a manner without reasonable and probable cause).
Russell has been heralded as the first case in which an Australian judge exercising common law jurisdiction has categorically accepted a duty of good faith in employment contracts. See Joellen Riley, “The Boundaries of Mutual Trust and Good Faith – Case Note; Russell v Trustees of the Roman Catholic Church for Archdiocese of Sydney” (2009) 22 Australian Journal of Labour Law 73. On appeal, where the issue was raised by a notice of contention, the NSW Court of Appeal also recognised the existence of authority making it at least arguable that there is an implied term in a contract of employment binding on an employer that an employer owes a duty of good faith towards her or his employees: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; (2008) 72 NSWLR 559 (Russell), although no member of the Court found it necessary to decide the question and all refrained from doing so.
In the circumstances the respondent’s submission that an amendment in the proposed terms would have to be struck out fails. Although some single instance Australian decisions have expressed doubt about the existence of such an implied term (whether as presently pleaded or proposed), it is unnecessary to refer to them at this stage. The applicant’s point is plainly arguable. There is a real question to be tried and, subject to any other disentitling factor, the question should go to trial: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel).
It is, however, difficult to understand the thinking behind the proposed amendment. When this question was raised during argument and counsel was asked whether this amendment was pressed, Mr King replied:
MR KING: I do press it, your Honour, as simply another way of putting the same proposition.
HER HONOUR: Well, then why do you need it?
MR KING: Well, because the - it’s not precisely - it’s expressed in more precise language than the earlier implication, your Honour, but we say that it doesn’t introduce any new fact. It’s simply a question - ultimately, a question of law.
I am afraid I cannot agree that the proposed amendment is expressed in more precise language. It is, of course, possible that Mr King was merely picking up on the remark Basten JA made in Russell at [32] that “it is probably sufficient to identify the two terms as a single obligation, citing Lord Nicholls’s statement in Eastwood extracted above”. Whatever the intention I do think that, ultimately, the existence and scope of any implied term is a question of law and, at this stage, it would be premature to resolve it. No conceivable prejudice would be caused to the respondent. The lack of particulars is no justification for rejecting it where the implication is said to arise as a matter of law, rather than from the facts. I therefore allow the amendment.
The next set of amendments in this category is to paragraph 37. The amendments are similar in nature to those the applicant sought to make to paragraph 14. Paragraph 37 is in these terms:
IOn or about 25 October 2006, the Respondent made an offer of employment and the Applicant accepted that offer on or about 31 October for the position of Business Analyst working at the level of Executive Manager ~~in LBB~~ (“October 2006 Contract”). She did not receive a written contract, Role Summary or Performance Planning documentation setting out the terms and conditions governing her employment under the October 2006 Contract:
A.The October 2006 contract took effect as a variation of the March 2005 contract or was a new contract on similar terms:
Particulars
(i)Communications between the Applicant and Mr Blomfield, on or about 16 October 2006;
(ii)~~Discussions~~ Communications between the Applicant and Mr Blomfield, on or about 25 October 2006;
~~(iii)Discussions~~ Communications between the Applicant and Mr Selvarajah, on or about 31 October 2006.; and
(iv)Document confirming the Applicant’s appointment dated 16 November 2006 from Mr Selvarajah.

For the reasons I gave in paragraph 38, I disallow the proposed amendments with the exception of the amendments in the first three lines appearing before the words in parentheses.
The proposed amendment to paragraph 38 seeks to introduce an allegation that it was an express term of the October 2006 contract that the applicant’s remuneration included:
education/training costs paid in the amount of $50,000 for the degree of Masters of Law and Legal Practise [sic] at the University of Technology, Sydney.
The applicant also seeks to add a further particular. This is the same amendment foreshadowed in the case of the May 2006 contract. For the same reasons I gave in that case I refuse leave to make this amendment.
Paragraph 45 (with the proposed amendments) is in the following form:
In accepting the position as Business Analyst in Local Business Banking the Applicant acted to her detriment as she
(a)~~she~~ left her previous position as Business Analyst Premium Business Services ~~reporting to Mr Harvey~~ and did not pursue the possibility of other employment opportunities with the Respondent and she would be unlikely to have left the Respondent for a period of not less than four years;
(b)~~she~~ ceased to pursue alternative employment with Macquarie Bank where she would be unlikely to have left for a period of not less than four years; ~~and~~
(c)the Applicant would have accepted employment with Macquarie Bank and would be unlikely to have left Macquarie Bank for a period of not less than four years.
(d)would have pursued career progression within the Public Relations industry and would be unlikely to have left the Public Relations industry for a period of not less than twenty-five years;
(e)would have pursued career progression in an operational capacity within the Financial Services industry and would be unlikely to have left the Financial Services industry for a period of not less than twenty-five years; and
(f)would have pursued career progression in the Legal industry and would be unlikely to have left the Legal industry for a period of not less than twenty-five years.
No explanation has been given for the delay in making these amendments. If I were to grant the applicant leave to do so, it would undoubtedly inconvenience the respondent and require considerable investigation and expense. I am mindful of the fact that the trial is due to begin in less than two months and that this is the third time trial dates have been fixed in this matter. The amendments to (b) and (c) are less troubling as they can be seen to be variations on the original theme. In the circumstances, I grant leave to amend as proposed in paragraphs (a)-(c) inclusive but refuse leave to make the amendments in (d)-(f).
Paragraph 74 is the next area of contention. It purports to relate to the claim of victimization. The original amendment sought to add to the allegation that the respondent was vicariously liable for the acts of Messrs Blomfield and Selvarajah:
its General Management, Executive General Management, the Executive of its parent company and subsidiaries, the Non-Executive Directors of the Boards of its parent company and subsidiaries, and the employees of its department of Human Resources which includes its department of Workers Compensation.
During the course of argument, however, Mr King retreated from this position.
The old proposed amendment has been abandoned. The applicant now merely seeks to add after the reference to the two named employees, “its employees and agents”. There is no dispute that Mr Blomfield and Mr Selvarajah were employees of the respondent at the relevant time. I fail to understand the purpose behind the proposed amendment. I would not allow it if the purpose were to make the same allegation in the earlier version of the amended statement of claim that I have set out above but in a concealed way. The respondent is entitled to be told in the statement of claim the identity of the individuals whose conduct is said to give rise to vicarious liability.
There is, however, another issue here. The respondent argued that an employer cannot be vicariously liable for conduct within s 94 of the SDA, which defines and proscribes an offence of victimization. Ms Eastman, who appeared with Ms Wright for the respondent, relied on the terms of s 106 of the SDA, which reads:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)an act that would, if it were done by the person be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b)done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of this kind referred to in that paragraph.
Victimization is proscribed by Part IV of the SDA, not Part II. Section 106 cannot make the respondent liable for conduct amounting to victimization by an employee or agent of the respondent. Presumably that was why Blomfield, [X], Selvarajah and Carroll were added as respondents to the HREOC complaint. But they are not respondents to the present proceeding.
I received submissions from both parties on whether s 106 is, in effect, a code on vicarious liability under the SDA or whether common law principles can be invoked. I do not think that the resolution of the question is as simple as Ms Eastman’s submissions suggested. Because I have decided to allow the amendment, however, I prefer to defer reaching a decision on the issue until the principal proceeding has concluded.
In any case I am prepared to allow the amendment on the basis that the applicant’s case is that the so-called victimizing behaviour also amounts to further discrimination. Whether or not it does, of course, is another matter, but that matter is also best determined at the hearing. So, if the conduct particularised in paragraph 68 of the proposed amended statement of claim can also amount to unlawful discrimination within Part II, there would presumably be no dispute that s 106 would be engaged. I am not, however, prepared to allow the addition of the words “employees and agents”.
The applicant proposes the following amendment to paragraph 75:
By reason of the facts and matters pleaded at paragraphs 68 to 74, the Respondent engaged in the victimization of the Applicant within the meaning of section 94 of the SDA.
(a)the Respondent’s conduct was unlawful discrimination to which section 46 of the HREOC Act and sections [sic] 94 of the SDA applies, or alternatively in respect of which there is an action on the case for the loss and damage caused to the Applicant by reason of the Victimising Behaviour; and
(b)further and alternatively, the alleged acts of victimization are further acts of unlawful sex discrimination.
The alternative position buried in subparagraph (a) is novel. It certainly does not answer the description the applicant gave to this category of amendment, namely, that it is an amendment by way of clarification.
The way the argument was put was that the breach of the statute in the particular circumstances gives rise to the action on the case.
I must confess not to have understood the submission.
Unarmed with authority to support it, Mr King argued:
Well, your Honour, we submit that one doesn’t need authority for the proposition that a breach of a statute whose purpose is the protection of the public interest with respect to particular individuals that’s basically the whole purpose of the discrimination law; that on the proper interpretation of the statute, it confers a right of action with respect if damage has occurred as a consequence of the breach. It’s not quite the same as a breach of statutory duty.
Whilst ingenuity is not to be discouraged, I do not think this is an example of it.
I do not accept that a right of action arises independently of the right conferred by the statutory scheme. In my view, that would be contrary to the intention of the Parliament.
The AHRC Act establishes a scheme to vindicate the rights that are protected by the SDA (and also the DDA, the Racial Discrimination Act 1975 (Cth) and the Age Discrimination Act 2004 (Cth)). The scheme involves establishing HREOC (Part II, Division 1) and conferring on it a range of functions, which are both proactive and reactive, including inquiring into, and attempting to conciliate, complaints of unlawful discrimination (s 11(1)(aa)). “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a) Part 2 of the Disability Discrimination Act 1992; or
(b) Part II or IIA of the Racial Discrimination Act 1975; or
(c) Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca)Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial Discrimination Act 1975; or
(f) section 94 of the Sex Discrimination Act 1984.
[emphasis added]
Part IIB provides the mode of redress for unlawful discrimination. It involves:
·Lodging a written complaint with HREOC (s 46P);
·Referral of the complaint to the President (s 46PD);
·Requiring the President to inquire into the complaint and to attempt to conciliate it (s 46PF(1);
·Empowering the President to terminate the complaint in certain circumstances, including the circumstance in which it was terminated in the present case, namely, that the President was satisfied there was no reasonable prospect of the matter being settled by conciliation (s 46PH);
·Where the complaint is terminated and notice has been given to the complainant(s), conferring a right on an affected person in relation to a complaint to make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1));
·Limiting that right to unlawful discrimination that is the same (or the same in substance) or that arises out of the same (or substantially the same) acts, omissions or practices the subject of the terminated complaint (s 46PO(3));
·Providing for a range of remedies if the court is satisfied there has been unlawful discrimination by a respondent (s 46PO(4)). Those remedies are broad in nature and include a right to compensatory damages.
Section 110 of the SDA provides:
Except as expressly provided by this Act, nothing in this Act confers on a person any right of action in respect of the doing of an act that is unlawful by reason of a provision of Part II.
There is a difficulty with this provision in that the SDA in its current form does not make any express provision conferring on a person a right of action for a contravention of any of its terms. Phipps FM referred to this problem in Taylor v Morrison [2003] FMCA 79 at [18]. His Honour noted that, until the amendments to the SDA (which came into force in October 1999), ss 49-84F of the SDA had provided for complaints and the making of claims and those provisions have now been replaced by the provisions in the AHRC Act pursuant to which complaints are now made and applications of this kind now come before the Court (see Human Rights Legislation Amendment Act (No. 1) 1999(Cth)). He wondered whether the section had any operation anymore.
Part II outlaws discrimination on the ground of sex and sexual harassment. As I said before, s 94 appears in Part IV, not Part II. It is unlikely to have been the intention of the Parliament, when it retained this provision after shifting the machinery for its enforcement into the AHRC Act, to limit the right of action in respect of sex discrimination or harassment to the one provided for in the AHRC Act, but to leave open the possibility that the courts might imply the existence of a right of action for victimization outside the elaborate procedure it had expressly put in place for its vindication Nevertheless, because of the changes to the SDA, this question cannot be resolved by the simple expedient of s 110.
The general principle is that the identification of what, if any, private rights of action are conferred by a statute (either expressly or by necessary implication) requires an examination of the nature, scope and terms of the statute. That includes “the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation”: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [20], citing Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].
It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as the case for a breach of s 94 of the SDA is not available.
In any event, I cannot see that the amendment serves any useful purpose. The applicant did not argue that she could achieve anything more by relying on an action on the case than she could by relying on the original pleading. In those circumstances it would not promote the purpose of the overarching purpose to allow the amendment.
I reject the amendment seeking to plead an action on the case.
I also reject the other amendment to this subparagraph. The reference to “s 46 of the AHRC Act” is bizarre. Section 46 deals with the tabling of reports to the Parliament by the Minister.
Section 94 of the SDA is referred to in the opening words of the paragraph. As I have already mentioned, “unlawful discrimination” is defined in s 3 of the AHRC Act to include an offence under s 94, so, on one view, the proposed amendment in subparagraph 75(b) is tautologous.
Nonetheless, Mr King sought to rely on the decision of Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 to support his argument. At [36] his Honour noted that s 94 conduct was also conduct that could amount to unlawful discrimination but that the applicant did not rely on s 94 and it was not therefore necessary to say anything more about it. In the circumstance (as I foreshadowed earlier) I think the matter should go to trial. Subparagraph 75(b) should become a new paragraph.
The final amendment in Category 1 is in the section entitled “Damages for Further Victimisation” in paragraph 88:
In the alternative to the paragraphs pleaded above (re disability discrimination), the Termination was further victimisation and discrimination of the Applicant (“Further Victimisation”) because the Applicant had:
(a)made a complaint about the [X] Behaviour; and/or
(b)rejected the [X] Behaviour; and/or
(c)made a complaint about the Blomfield Behaviour; and/or
(d)rejected the Blomfield Behaviour; and/or
(e)relied upon the dispute procedure provision within the Contract.
As I understand this paragraph, the applicant’s main contention is that the respondent terminated her employment because she was under a disability: see paragraph 85 of the proposed amended statement of claim. By this paragraph she wishes to argue in the alternative that the fact that her employment was terminated amounted to victimization within the meaning of s 94 of the SDA or of s 42 of the DDA (it is unclear which) and also discrimination because she had made the complaints about Messrs [X] and Blomfield and that she had relied upon the dispute procedure provision within the Contract.
The respondent’s complaint about these proposed amendments was that the reference to “the paragraphs pleaded above” was confusing, particularly as it removed the references to paragraph numbers that appeared in the statement of claim that was filed. Mr King confirmed that the applicant’s intention was to plead this allegation in the alternative to the paragraphs that relate to disability discrimination. In the circumstances that criticism falls away.
I refuse leave to add the words “and discrimination”. The material facts necessary to support it are not pleaded. The allegation in subpara (b) is obviously made to remedy an oversight and I will allow it. The allegation in (e) is mystifying. And, as the proposed amended statement of claim refers to three different contracts, it is also embarrassing within the meaning of O 11 r 16 of the Rules in that it is ambiguous, vague, substantially unintelligible. See Bartlett v Swan Television & Radio Broadcasting Pty Ltd (1995) ATPR 41-434. For these reasons I refuse leave to add subparagraph (e).
I therefore allow the amendments proposed to line one of paragraph 88 and to add subparagraph (b) but disallow the rest.
Category 2 & 3 amendments: further particulars and sexual assault
The applicant claims that the further matters she wishes to particularise in the statement of claim, including the sexual assault, are not new matters as they were before HREOC. She again relies on O 13 r 2(2). She also relies on the fact that counsel for the respondent, when she cross-examined the applicant on her affidavit, did not challenge her on the fact of the alleged assault or on the proposition that it formed part of the events the subject of the HREOC complaint.
The first group of amendments appears in paragraph 18 and relates to allegations of sexual harassment/discrimination against [X]:
From in or about ~~16 May 2006 until on or about 30 June 2006,~~ 24 February, and from 12 April until on or about 18 July 2006, and on and around 13 April 2007, [X] breached the implied term of trust and confidence of the May 2006 Contract by engaging in behaviours towards the Applicant, including but not limited to:
(a)making persistent requests for sex;
(b)making sexually derogatory and/or sexually abusive comments about the Applicant to the Applicant including in the presence of other persons and/or in public, including but not limited to:
Particulars
[Not reproduced.]
(c)making comments of a sexual nature to the Applicant regarding the Applicant;
(d)terminating the Applicant’s employment and/or threatening to terminate the Applicant’s employment;
(e)making comments of a sexual nature to the Applicant regarding another employee;
(f)commenting on the Applicant’s physical appearance;
(g)persistently requesting the Applicant to meet him for drinks and/or meals after work;
(h)advising the applicant to the effect he would not employ her unless he she allowed ~~her~~ him to flirt with ~~him~~ her;
(i)on two occasions attempting to have sexual intercourse with the Applicant without the Applicant’s consent;
(j)on at least ~~one~~ two occasions trying to kiss the Applicant;
~~(k)isolating the Applicant from other employees of the Respondent by placing her work station within the executive suite on level 17 of the Respondent’s 363 George Street premises in Sydney;~~
~~(l)failing to provide the Applicant with Performance Planning and Performance Review documentation during her employment;~~
(m)     commenting on the physical appearance of other employees to the Applicant;
(n)      touching and kissing another employee in front of the Applicant;
(o)      on at least four occasions indecently assaulting the Applicant;
(p)      making threats to the Applicant in the event that she reported his conduct;
(q)      attempting to establish a relationship of trust with the Applicant’s family;
(r)complimenting the applicant excessively with regard to her clothing and fragrance;
~~(s)       failing to notify the Respondent of the May 2006 Contract until June 2007;~~
(t)failing to notify the Respondent of the Applicant’s rank of Level 3, Executive Manager, ever;
(u)telling the applicant that Level A was equivalent to Level 3 within the Respondent’s hierarchical classification structure;
(v)causing the Applicant to lose her position as Business Analyst, Sales and Service, Premium Business Services on 18 July 2006;
Particulars
(i)Particulars of the conduct in 18(b) and (i) – (v) are contained in the statement made by the Applicant to the Human Rights and Equal Opportunities Commission (“HREOC”) dated January 2008, a copy of which has been served on the Respondent (“the HREOC Statement”);
(w)      commenting on the physical appearance of the Applicant’s mother;
(x)making comments of a sexual nature to the Applicant regarding the Applicant’s mother; and
(y)      sexually assaulting the Applicant.
Particulars
(i)Particulars of the conduct in 18 (w), (x) and (y) are contained in the detailed Statement of a Witness made by the Applicant to the New South Wales Police Force on 13 February 2009 (“the Police Statement”), a copy of which has been served on the Respondent.;

It is common ground that several amendments to paragraph 18 did not appear in the voluminous material furnished to HREOC. They are the allegations in paragraphs 18(m), (q), (w), (x) and (y). The allegations contained in paragraphs 18(w) and (x) of the proposed amended statement of claim concern comments of a sexual nature about, and relating to, the physical appearance of the applicant’s mother, which, on their face, have little or nothing to do with the allegations in the statement of claim. The allegation made in paragraph 18(y) is that [X] sexually assaulted the applicant. The sexual assault is not particularised or otherwise described but the details are given in full in a statement the applicant made to the NSW Police Service on 13 February 2009.
In her affidavit filed in support of this notice of motion the applicant did provide an explanation for the addition of the claim of sexual assault, though not for any of the other amendments in this category. Her explanation was that she was “reluctant to include the matters in these proceedings” because she was concerned about “compromising the police investigation”. She never explained why or how she thought that “including” the allegation of sexual assault in these proceedings would or even could compromise that investigation. I am unable to accept the explanation.
The police statement was made more than two and a half years after the conduct is alleged to have taken place, 13 months after the applicant had lodged her complaint with HREOC and nearly seven months after this proceeding was commenced. In cross-examination she affirmed that she had made a deliberate decision not to raise the matter at the time of the police investigation, claiming to have been so advised by her then legal advisors, and that she only decided to do so after the police suspended the investigation in December last year. This evidence is problematic because, as the applicant conceded in cross-examination, she had no hesitation raising some of the subject matter included in her police statement in her workers’ compensation claim. Her explanation for the apparent inconsistency was that she started the workers’ compensation proceedings after she had reported the matter to the police.
In any case, however, a reluctance to compromise the police investigation would not explain the applicant’s failure to mention it in the HREOC complaint or to plead it in the statement of claim, as the complaint to the police was not made until after the HREOC complaint had been terminated and after this proceeding had commenced.
In her police statement, possibly in response to a question from the police, the applicant gave a completely different explanation for her delay in complaining. This is what she said there:
“These allegations [referring to the allegations the subject of the present proceeding] did not include the sexual assault of me by [X] as I had not yet informed any person about it at the time…”
She told the police she would not agree to settle her claim because that would have involved signing a deed of release and that “would have meant that I would never be able to report sexual assault to the Police”. This is a curious comment in view of what follows, namely, “I was also unaware that digital penetration amounted to sexual assault and I thought that ‘rape’ was only penetration with the penis. It wasn’t until I was making an affidavit in late December 2008 for the civil proceedings, regarding what had occurred, that I came to realise that a criminal offence had been committed”. That could explain why she did not report the conduct to the police, but it certainly does not explain why she did not give an account of the alleged conduct in her complaint to HREOC or in the statement of claim.
Section 46PO(3) of the AHRC Act limits the scope of any application to the Federal Court (or the Federal Magistrates Court) for unlawful discrimination:
(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
“Unlawful discrimination” is defined in s 3 of the AHRC Act in such a way as to capture sexual harassment and victimization as well as discrimination.
In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J said:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility (“or the same in substance as”, “or substantially the same”) and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
The final shape of the complaint can be seen from the letter from the President’s delegate terminating it which is attachment A to the notice of termination and was annexed to the application which initiated this proceeding. There is no reference to digital penetration there or in the very lengthy HREOC statement, itself, or the supplementary statements.
In re-examination this exchange occurred between counsel for the applicant and the applicant:
MR KING: It was suggested to you that in relation to the events of 9 June 2006, that you made a tactical decision not to advance that question in the present proceeding. Are you able to inform her Honour as to what has motivated you to bring that matter forward in this proceeding and why it wasn’t brought forward earlier?---Well, I think that it was brought forward earlier. I think it was brought forward at item 10 on page 30 [of the HREOC statement].
This answer was inconsistent with the evidence the applicant gave in her affidavit and under cross-examination to the effect that she had, indeed, made a tactical decision not to include the matter in this proceeding. I find it very difficult to reconcile the two accounts. It is also completely at odds with what she told the police.
In his supplementary written submissions Mr King argued that the new allegation was “consistent with the material contained in the HREOC complaint”. But consistency is not the test imposed by s 46PO(3). During oral argument Mr King contended that the event described in the HREOC complaint under the date 1 June 2006 was the same event the applicant now says occurred on 9 June 2006, the only difference (apart from the date) being that there is a fresh allegation of digital penetration. On a careful comparison of the police statement with the HREOC statement, there are significant differences between the two. Still, it is not implausible that the applicant was intending in the police statement to refer to the same occasion as that which she told HREOC occurred on 1 June but simply added to her description of it to the police. The omission of many of the details from her HREOC statement, including the allegation of digital penetration, may affect her credit. Yet, if she maintains that the incident is one and the same as that she related to HREOC, then s 46PO(3) does not prevent her from including it in these proceedings.
To fall within s 46PO(3) it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different – not the same or substantially the same – conduct: cf. Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 at [9]:
A new incident, even if it is an incident of the same type as advised to the Commission, would be unlikely to pass this test because, if unknown at the time of the attempted conciliation, it could not have been part of it.
The allegation of sexual assault is not the same or substantially the same conduct that was the subject of the terminated complaint. But, if the applicant was, indeed, referring to the episode she told HREOC had occurred on 1 June, then the alleged sexual assault does arise out of the same or substantially the same, acts, omissions or practices that were the subject of the terminated complaint. Despite the very important differences between the accounts, I am prepared to accept that the allegation does not relate to a new incident. Rather, it is a new allegation (or, more accurately, a set of new allegations) about the same incident and it therefore falls within the ambit of the terminated complaint. That does not, however, dispose of this amendment.
There has been a significant delay in making this allegation, both to the police and in the proceeding.
The explanation for the delay given in the affidavit filed in support of the motion relates only to the period during which the police investigation was ongoing (2009). There is no explanation for the omission of any reference to it in the HREOC statement submitted in early January 2008 or in the statement of claim filed in this Court in July 2008. The explanation the applicant provided the police does not explain why a description of the conduct was omitted from the HREOC statement or the statement of claim. Why was it important to include in the HREOC statement references to drinking chai tea, for example, but not to conduct that amounts to a sexual assault?
The belated assertion in re-examination that the allegation had in fact been included in the HREOC statement does not withstand scrutiny and, as I have already observed, does not appear to be consistent with what the applicant told the police.
In the result, I am not satisfied that the applicant has adequately explained the delay in including a sexual assault in the pleading.
Neither am I satisfied that she has demonstrated that the respondent would not now suffer prejudice if she were permitted to expand her pleading to include it.
The remarks McHugh J made in Taylor at 551–555, though made in the context of an application for extension of time, are equally applicable here. The quality of justice deteriorates with time. In almost every case in which there has been an extensive delay there will be the potential for prejudice. Memories fade. Crucial witnesses may become unavailable or the quality of their evidence may diminish. Important documents may have disappeared or been destroyed. It is true that the respondent has put on no evidence to prove actual prejudice but, as the High Court acknowledged in Taylor, prejudice will also arise in other, subtle, sometimes unrecognised ways. Prejudice can be inferred or presumed from the passage of time.
It is beside the point that counsel did not cross-examine the applicant so as to query the fact of the alleged assault. This application is not concerned to determine the truth of the allegation, merely whether the applicant should be permitted to make it at all.
I refuse leave to add paragraph 18(y).
The allegations made in (w) and (x) that relate to the applicant’s mother are admittedly new allegations not described in the HREOC statement. The respondent argues that they are outside the scope of the definitions of unlawful discrimination or sexual harassment anyway. A comment of a sexual nature about another person does not necessarily fall outside the definition of sexual harassment. Section 28A of the SDA provides:
Meaning of sexual harassment
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
So [X] will have sexually harassed the applicant for the purposes of the SDA if he made a statement of a sexual nature to her or in her presence provided that the statement is “in relation to” her and in the circumstances a reasonable person would have anticipated that the applicant would have been offended, humiliated or intimidated. The context in which a statement is made may make it a statement of a sexual nature “in relation to the person harassed”.
A relationship connotes a link, a connection or an association. It is well accepted that exposure to sexually explicit material or sexually suggestive jokes amounts to conduct of a sexual nature within the definition of “sexual harassment”; see Australian Human Rights Commission, Federal Discrimination Law (August 2009) at [4.6.1], and the cases listed there.
The question arises as to whether the comments attributed to [X] regarding the applicant’s mother are also “in relation to” her. The alleged comments are set out in the police statement. They were taunting in nature. They compared the applicant’s mother to her. They were allegedly made in the office when no-one else was around and followed other statements of a sexual nature about the applicant herself. In the context in which they are said to have been uttered, they are connected or associated with her. They are certainly capable of amounting to unwelcome conduct of a sexual nature in relation to the applicant in circumstances in which a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated.
The fact that they are not detailed in the HREOC complaint is not a disqualification because, in this instance, I am satisfied that the remarks arise out of the same or substantially the same conduct alleged against [X] and described in the complaint.
There are other amendments to this paragraph that fall within the same class. That is they plead comments or conduct concerning others. Those particulars are in (m) and (n).
The reason for these late amendments, however, is not explained.
The reason for the delay is not self-evident. Because there is no reference to it in the HREOC complaint and two years have elapsed since the application was filed, I refuse leave to add paragraphs (w) and (x).
The proposed paragraph 18 also seeks to expand the time during which the offending conduct is alleged to have occurred. In his final set of written submissions, Mr King argued that the inclusion of 24 February 2006 is a reference to what the applicant said in her HREOC statement was her first meeting with [X] (there said to be on 14, not 24, February 2006) and that she “made a simple date error” in her HREOC statement. If this were an error on the applicant’s part, there is no evidence to support it and no explanation for why no February date was included in the original form of the statement of claim. But more importantly, what appears in the HREOC statement for 14 February 2006 is an account of the circumstances of the applicant’s meeting with [X]. It is relevant background but it does not embrace any of the conduct described in the particulars.
There is an additional problem arising from the curious way in which the allegations of unlawful discrimination are pleaded. The allegation in this paragraph is of a breach of an implied term in the May 2006 contract. The respondent cannot be in breach of a term of a contract that has not yet been entered into.
I reject the amendment to include 24 February 2006. For the same reason I reject the amendment to include “the period from 12 April 2006…”.
The reference to 18 July 2006 is said to be “directly referable to” the statement attributed to [X] and reported in the HREOC statement that he told the applicant he would no longer require a business analyst. It occurred some three weeks after the close of the period relied upon in the original statement of claim. I am prepared to allow the amendment.
The attempt to expand the period to incorporate 13 April 2007 is more problematic. According to the applicant’s last submission its purpose is to catch the statement made to HREOC that on that day the applicant was advised by Ingrid Leipins, General Manager Talent and Development, and [X] to approach Peter Hill immediately “due to the seriousness of the situation with Michael Blomfield”. On its face it has nothing to do with the allegations made in paragraph 18. It is not further explained. I refuse leave to add it.
The insertion of the words “of the May 2006 Contract” merely clarify the allegation concerning breach and I allow that amendment.
With one qualification I also allow the amendments to subparagraphs (b), (h), (i) and (j) which strike me also as clarification only and are clearly covered by the HREOC statement. I reject the respondent’s contention that the applicant’s case in this regard is so confusing that it is impossible for the respondent to defend the allegations. One consequence of the late submission the applicant has made is that the respondent will no longer have “to guess the scope of the evidence to be led at trial by guessing which parts of the various documents relied upon underlie the proceedings” (as the respondent submitted). The scope of that evidence has now been identified. The qualification is that I will not allow that part of the amendment that begins with the words “including but not limited to” and contains “particulars”. These “particulars” like many in this flawed pleading are a misnomer. In this case they provide evidence. While I have chosen to overlook other instances of this in the pleading, in this case I will not, as the contents are scandalous. That is not to say that the evidence cannot be called. It simply has no place in the pleading.
And I allow the amendments to plead (m) and (n) for the reasons given above and as they are also plainly the subject of complaint to HREOC.
Subparagraph (o) is also covered by the HREOC statement and I allow it.
Support for the new allegations in subparagraphs (q) and (r) is said to come from [X]’s admission in his HREOC statement made on 13 June 2008 and (in the case of the allegation in subparagraph (r) paragraph 18(i) of the Defence). [X]’s HREOC statement was not tendered in evidence. Paragraph 18(i) of the Defence is no support at all. It contains an admission that [X] occasionally complimented the applicant on her professional style of dress. That scarcely supports an allegation that he complimented her excessively on her clothing and fragrance. I refuse the amendments.
The proposed amendments in subparagraphs (t)-(u) are troubling. The justification for (t) is that the applicant said in her HREOC statement that “no PF&R Plan was issued and because of this, I continued to experience uncertainty and concern”. The justification for (u) is that she told HREOC that “[X] told me that I was equivalent to an Executive Manager Level 3”. Neither reference appears to support the allegation in the proposed pleading.

I pause to note again that there was a further amendment to the pleading from that indicated in the document handed up to the Court on the second date of the hearing – in paragraph 110(i)(DD) the date has been changed from April to May 2008. I regret to say that this further change was not called to the Court’s attention.
“The contract alleged in paragraph 10” referred to in paragraph 102 is the contract made on 4 March 2005. The applicant’s case is that she entered into a new contract in May 2006 which varied the March 2005 contract or was “a new contract on similar terms” (see paragraph 14). The May 2006 contract, on the pleadings, was later superseded by an October 2006 contract, which, similarly, varied the March 2005 contract or was “a new contract on similar terms” (paragraph 37). The alleged breaches relate to disclosures from March 2006 to 2009. I will assume, for present purposes, despite the way the allegation is pleaded, that the applicant’s case is that the same express term appeared in each contract.
In support of her application on this part of the case, the applicant argued:
(a)It will be submitted that the employment relationship included “an obligation of confidence arising from the protocols that formed part of the relationship” and that the express obligations of confidence specified in the newly revised pleading, as well as the obligations in equity “evidence a clear foundation in fact and in law for the alleged claims”. She relies on the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 (Lenah Game Meats) and the cases referred to in it.
(b)It is not pleading a cause of action not known to the law, again relying on Lenah Game Meats and Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 and Giller v Procopets [2008] VSCA 236; (2008) 79 IPR 489 at [450] and [471]. Doe v Australian Broadcasting Corporation [2007] VCC 281 and Grosse v Purvis [2003] QDC 151 at 332 [sic]; (2003) Aust Torts Reports 81-706.
(c)It is not appropriate at this stage of the proceeding to “[stifle] the development of the law in respect of which there is a reasonable possibility it will be found that a cause of action may lie or be extended”. Here the applicant relied on Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 and, although I do not understand its relevance, s 80 of the Judiciary Act 1903 (Cth).
Most of the argument was devoted to the question of whether there is an arguable case for an action for a breach of privacy or confidence although the claim was pleaded in contract as well. There are undoubtedly grave problems with the proposed claim based on a tort of privacy.
In his second set of submissions Mr King argued that:
62.The mere fact that a cause of action may be novel does not preclude an Applicant from pursuing it, as long as it is reasonably arguable on the available facts.
63.The Applicant again relies on material discovered during the course of these proceedings, including as late as February 2010, in support of this additional claim.
64.The Applicant’s case raises a serious question to be tried. The Applicant contends that the content of the Respondent’s communications to the Australian press, other banks, clients and employees was confidential in the sense that it was private opinion about an employee’s body, health and character, is also a breach of confidence: National Privacy Principles for Private Sector Organisations, Privacy Act 1988, as amended 2001.
65.With respect to breaches of confidence, the Applicant contends that there arose an obligation of confidence, both from the nature of the information itself and the nature of the employment relationship, and that confidence was broken by Mr Blomfield in a sworn statement given on 8 June 2007 and by Ms Chapman on 14, 15, 16 and 17 April 2008.
66.The Applicant contends that an obligation of confidence also arises from the Privacy Act 1988, Part Viii s93 and the Applicant claims relief against it. The Act allows the Applicant to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information. The Act does not limit or restrict any other right that the Applicant has to relief in respect of that breach. Nor does the Act prevent the Applicant from seeking relief against the obligation of confidence which arose when the Applicant’s personal information, communicated by Mr Blomfield in his sworn statement, [was] communicated by third parties such as Ms Chapman. That breach of confidence caused the Applicant damage.
67.The Applicant contends that the Respondent’s breaches of privacy also give rise to an application for damages akin to those awarded by the House of Lords in Campbell v MGN Limited [2004] UKHRR 648 and the Applicant will submit that it is appropriate for this Court to adopt that authority.
68.The Applicant submits that the development of the tort of breach of privacy in Australia warrants the Federal Court’s consideration. We say that Applicant has a “right to respect for her private and family life, her home and her correspondence”. The Respondent’s recently discovered documents reveal action taken by the Respondent that was not “in accordance with the law” and was not “necessary in a democratic society”.
These submissions reflect the lack of clarity in the pleading. They appear to conflate a tort of privacy and an action for breach of confidence in a way I am unable to follow. They do not deal with the contract claim or its relationship with the other two causes of action.
They also refer only to disclosures by Mr Blomfield and Ms Chapman. Yet it would appear from the proposed pleading that the conduct of numerous other individuals is also impugned. I do not understand it to be in in dispute that Ms Chapman is not an employee of the respondent but the material facts said to give rise to the respondent’s liability for her conduct are not pleaded.
Despite the reference in the submissions to the Privacy Act 1988 (Cth) (Privacy Act) it is not mentioned in the pleading. In Austen v Civil Aviation Authority (1994) 50 FCR 272 the Full Court observed (at 278) that the Parliament appears to have made a deliberate decision not to legislate for a right of action in tort for a breach of a privacy principle (as specified in s 14 of the Privacy Act) and considered that the provisions of Part VIII of the Privacy Act “can be seen as extending the remedies available in equity for breach of an obligation of confidence”. And at 277 the Court said:
Although s 93 of the Privacy Act provides for a confider to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information, s 90 limits the operation of Part VIII (in which s 93 appears) to obligations of confidence in respect of a breach of which relief may be obtained in legal proceedings…
The decision of the House of Lords in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 is of little, if any, assistance. Ms Campbell’s common law action, though pleaded more widely, was presented at trial exclusively on the basis of a breach of confidence (coupled with a statutory claim not pressed on appeal), that is, the wrongful publication by the newspaper of private information. And, as Lord Nicholls of Birkenhead noted at [16], the European Convention on Human Rights and the Strasbourg jurisprudence have had a significant influence on this area of the common law in the United Kingdom. Not so, it must be said, in this country. Moreover, the confidential information in that case concerned Ms Campbell’s drug addiction and her treatment for it. This was data about her health and treatment for ill-health, which is generally accepted as both private and confidential. There is no suggestion in this case that we are dealing with information of this nature here.
New Zealand has recognised a common law tort of invasion of privacy, which does not depend on its Bill of Rights: P v D [2000] 2 NZLR 591, a case in which a public figure successfully applied for an injunction to restrain a journalist from publishing the fact that he had been treated in a psychiatric hospital and attended by a police officer as an emergency as a breach of privacy (but in which the application on the basis of a breach of confidence was rejected). Still, the New Zealand Court of Appeal held in Hosking v Runting [2005] 1 NZLR 1 in which Nicholson J’s decision in P v D was approved at [117]:
In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:
1. The existence of facts in respect of which there was a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
Tipping J, who with Gault P and Blanchard J formed the majority in the result, disagreed with them about the stringency of the second requirement (at [256]).
Gault P and Blanchard J emphasised the second element at [125]-[126]:
In theory, a rights-based cause of action would be made out by proof of breach of the right irrespective of the seriousness of the breach. However, it is quite unrealistic to contemplate legal liability for all publications of all private information. It would be absurd, for example, to consider actionable merely informing a neighbour that one’s spouse has a cold. By living in communities individuals necessarily give up seclusion and expectations of complete privacy. The concern of the law, so far as we are presently concerned, is with widespread publicity of very personal and private matters. Publication in the technical sense, for example as applies in defamation, is not in issue.
Similarly publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm.
In the present case, I note parenthetically, there is nothing in the pleading to suggest that the publication of particular private facts would be considered highly offensive to an objective reasonable person.
As Kirby J pointed out in Lenah Game Meats at [186], since the majority decision of the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (Victoria Park Racing), it has generally been accepted that the common law of Australia does not recognise a tort of privacy. At [41] Gleeson CJ said that “the lack of precision of the concept of privacy is a reason for caution in declaring a new tort” of this kind. Another is the tension between interests of privacy and interests of free speech. In Lenah Game Meats the Court was invited to depart from the old authority. It did not accept the invitation but Gummow and Hayne JJ (at [107]) felt that Victoria Park Racing does not stand in the way of the development of such a cause of action and that was plainly the view of the majority, if not all, of the court. Callinan J noted (at [321]) that it was well recognised in the United States, where a tort based on the right to privacy has developed, how fragile privacy can be if unprotected by a legal remedy.
Davies J summarised the current Australian position in Chan v Sellwood [2009] NSWSC 1335 at [37]:
Whether the law of Australia recognises a tort for breach of privacy is a little unclear. What the High Court said about it in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [40]–[42] and [106]–[132] and [189]–[190] would not appear to preclude the emergence of such a tort. In Grosse v Purvis (2003) Aus Torts Reports 81-706 Skoien J of the Queensland District Court found that there was such a tort (see at [421]–[447]). Heerey J in Kalaba v Commonwealth [2004] FCA 763 thought that the weight of authority was, at that time, against the proposition that there was such a tort but in Gee v Burger [2009] NSWSC 149 McLaughlin AsJ thought at [53] that the matter was arguable.
I accept, therefore, that it would be inappropriate to deny someone the opportunity to sue for breach of privacy on the basis of the current state of the common law, although whether the matters complained of in the present case would be actionable if a tort of privacy were recognised is another question.
The claim for breach of confidence is problematic. As Ipp AJA (with whom Mason P and Giles JA agreed) pointed out in NRMA v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 at [30], an unsuccessful appeal from a decision of Bryson J in the NSW Supreme Court declining to issue an interlocutory injunction restraining the respondents from publishing confidential information about proceedings at a board meeting:
The mere fact that particular information is of a confidential character does not impose an obligation of absolute confidentiality on every person in possession of it. For example, ordinarily, a director who knows a trade secret of the company would be entitled to discuss that trade secret with appropriate officers of the company. Senior government officers will often be entitled to discuss matters of great secrecy and great national interest with others who are authorised to receive such information. Moreover, circumstances may arise where a person in possession of confidential information is duty bound to disclose it. Each case depends on its own circumstances and in each case there has to be an enquiry into the extent and limits of the obligation of confidentiality that may be imposed on an individual in regard to particular pieces of confidential information in his or her possession.
Information may lose its confidential character if it later enters the public domain. If the confider publishes the information this releases the confidant from the duty of confidence: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268.
I am, however, content to proceed on the assumption that an action for breach of confidence would not fail the General Steel test.
But that does not mean that the applicant has made out a case to justify the grant of leave. Quite apart from the question of whether the facts as pleaded would give rise to an arguable case for breach of confidence or in tort for a breach or invasion of privacy, other matters stand in the applicant’s way.
First, these are entirely new issues. The legal questions are quite different. Despite the applicant’s submission to the contrary, the substratum of facts is not the same. For example, on the material before me the Fair Treatment Review referred to in paragraph 103, and which generated the diary notes listed as particulars under paragraph 110, seems to have had nothing to do with the discrimination, harassment or victimization claims. According to the man who conducted it, Terry Mason, an Executive General Manager in Human

Resources, whose report was exhibited to an affidavit of Elizabeth Ferrier, the respondent’s solicitor, the review centred on “four core issues”:
§ Mr Selvarajah recording file notes which were said to be inaccurate and disconnected from the normal performance management process;
§ Unfair criticism of writing style;
§ Unrealistic working conditions and being assessed on cultural fit rather than outputs and being socially excluded from the management team;
§ Breaches of confidentiality by Mr Selvarajah.
Mr Mason went on to acknowledge that, in addition, “issues raised in support of remediating suggestions need also to be considered as they go more broadly to both management process and culture”. If there is anything in common between the matters arising from the Fair Treatment Review and the current proceeding, the applicant has failed to show it. The text of the applicant’s complaint considered in the review was not before the Court but Ms Chapman, in letters to the editors of The Age and the Sydney Morning Herald written on 14 April 2008, reported that she did not raise any issue of sexual harassment.
It appears likely that additional witnesses would be required (in circumstances where over 40 were flagged when the matter was set down for trial last year).
Joinder would unquestionably complicate the trial or, worse still, require the hearing dates to be vacated for a third time. In my view a costs order would not adequately compensate for such a course. Those against whom the applicant has made serious allegations should not have to wait any longer to have their day in court. Mr King argued “hardship cuts both ways”. He said “the Court is aware that [the applicant] has medical evidence to support her claim of continuing injury and loss, which are unlikely to be resolved during the pendency of proceedings” but “the Respondent has led no evidence of hardship”. There are several difficulties with this submission.
First, no medical evidence has been tendered. The Court has no idea of the nature or extent of the applicant’s claimed injury or loss. Secondly, as I pointed out early in these reasons, the respondent bears no onus on this application. Moreover, as the plurality recognised in Aon at [101]:
[w]hilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules [cf s 37M of the FCA Act] of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
There are also significant problems with the pleading. I accept the respondent’s argument that “the manner in which the ‘duty’ is alleged is so vague and unclear that it should not be permitted”. It would be susceptible to being struck out under Order 11 r 16 because it has a tendency to cause prejudice, embarrassment or delay.
Bongiorno J observed in Gunns Ltd v Marr [2005] VSC 251 at [57], that the Court must:
ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r 23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form.
This pleading is indeed vague and general. It is also in some respects unintelligible, contains irrelevant allegations, and lacks the clarity necessary to enable the respondent to know the case it has to meet and to enable the Court to make any sensible rulings on what might be relevant.
Take the breach of contract claim. The applicant pleads in paragraph 102 that it was an express term of her March 2005 contract that she could raise her concerns in accordance with the respondent’s Fair Treatment Policy. Nowhere, however, is a breach of that term pleaded. On its face it has nothing to do with a breach of privacy or confidence. As the respondent noted in it submissions filed on 7 May 2010, the document or documents said to comprise the “Fair Treatment Policy” are not identified. Neither is the relationship between the “Fair Treatment Policy” and the “CommSec Confidentiality Policy” described, nor the latter’s relationship to the contract.

The only other contractual term upon which the applicant relies is pleaded in paragraph 104. That pleading is plainly embarrassing. She must know whether it was an express term of the contract that the Equal Opportunity Policy and the Diversity Policy applied with respect to any grievance she had or action she took. The material facts upon which the Court could find that the contract contained such terms are not pleaded. What clause of the contract is said to have been breached? If this was not an express term, upon what basis is it said to have been implied? The respondent referred in its written submissions to the general principles about implying terms into contracts discussed in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 (PC) at 283. See also Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 442 in the case of a contract that is oral, or partly oral and partly written. The applicant made no attempt to fit the case she sought to make within these principles or to argue that they were inapplicable.
How the alleged duty of confidence differs from the (already pleaded) implied term of mutual trust and confidence was never explained.
The particulars to paragraph 107 are not, in truth, particulars of the alleged use or disclosure of confidential information. Rather, they seem to be allegations about the method of collecting and retaining information and particular (vii) appears to be completely irrelevant.
No particulars are given of the allegation in paragraph 109 that the respondent disclosed personal details about the applicant without her consent. What details? To whom were the disclosures made? When? In what circumstances? Mr King conceded that the

particulars were not complete and the respondent was entitled to seek further and better particulars. But at this late stage of the proceeding and on the second attempt to plead these allegations I do not think it is sufficient to say that the respondent may ask for further and better particulars. The interlocutory process that this new pleading would generate would divert the respondent from its preparation for trial on the case the applicant chose to make against it.
What is the duty mentioned in paragraph 110 that is different from the duty mentioned in paragraph 109? If there is no difference, then the pleading is repetitive. If there is, then the pleading is embarrassing. If it is meant to provide particulars of the allegation in paragraph 109, then it fails miserably. In any case it cannot be a breach of duty (assuming the existence of such a duty) for an employer to disclose personal details about the applicant without the applicant’s consent. Not all the information an employer holds on an employee is confidential. Nowhere in this pleading is the particular data identified. Yet, as Gummow J said in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87, in an action for breach of confidence an applicant must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question and be able to show that the information has the necessary quality of confidentiality.
The particulars described in subparagraph 110 (i) are barely intelligible and their relationship to the material facts obscure. How is collecting data a particular of disclosing it?
Those “particulars” listed below that subparagraph refer to documents and “communications”. Again, these are not in truth particulars. They do not narrow the issues. Rather, they invite further questions. What is the nature of the communications? Were they oral or in writing? What information was conveyed? What made the particular information confidential? When precisely did the communications take place? In what circumstances?
The diary notes referred to in subparagraphs (A)-(G) are in evidence. They were exhibited to an affidavit of Ms Ferrier. I can see nothing in any of them that could conceivably amount to a disclosure of personal details about the applicant or the collection of personal and sensitive data about the applicant in an impermissible way. If that is not the purpose in referring to them, then what is the pleader’s purpose? Do the references to them do nothing more than identify documents the applicant would propose to tender? If so, they have no place in the pleading. The references only serve to obfuscate.
The documents referred to in the second set of particulars at subparagraphs (H)-(T) are described as records of interview with various individuals about the applicant’s allegations, which I understand to be the allegations that she later took to HREOC. But what she alleges was improperly disclosed about her in these interviews is also mystery. So, too, the way the respondent is said to be liable for any such disclosures.
The allegation in particular (viii) of collecting data without telling the applicant or giving her an opportunity to respond to it does not bear any apparent relationship to the contractual terms relied upon.
A failure to make an accurate record (the allegation in (ix)) could not, without more, support any of the pleaded causes of action.
I do not understand particular (x). It cannot be an improper purpose of collecting data merely to use the data for a purpose other than collecting it. An employer does not generally collect data on its employees merely to store it.
How can the respondent be held liable for the conduct of its parent company? Yet, some of the “communications” appear to have been made by employees of the parent company and particular (D) to particular (x) of paragraph 110 complains of the use of the data by the parent company.
The applicant is seeking an indulgence from the Court weeks away from trial. This circumstance alone calls for a degree of precision sadly missing from the proposed amended statement of claim.
I have given anxious consideration to whether leave should be given to re-plead and, if so, whether there should be a separate trial on the issues raised by this new allegation. Ultimately I have decided against both. The applicant has already availed herself of an opportunity to re-plead. I have no confidence that, given a further opportunity, the result would be appreciably different.
And there are additional considerations.
The respondent argues that the delay causes it prejudice. It submits, and I accept, that it would have to meet a significantly different claim. It would have to prepare and adduce evidence, not relevant on the current pleading, “on a number of fronts, including as to the operation of workplace policies and procedures”.
The proposed amended statement of claim was served on 15 February this year. The hearing on the notice of motion commenced on 11 March, when the applicant’s evidence was taken and she was cross-examined, and then was adjourned until 30 April. At that time, without any previous notice to the respondent or the Court, Mr King announced that the applicant had reframed her claim. The respondent had no opportunity to cross-examine her on the material that had been added, in particular, on the “communications” referred to in paragraph 110(i)(V)-(FF) to explore when she first became aware of those matters. Re-pleading is one thing; expanding the scope of the claim is another. No attempt was made to show that the respondent would not be prejudiced by the inclusion of the new material. It is no sufficient answer to say that the respondent could have required the applicant for further cross-examination. Counsel for the respondent had no opportunity to consider the proposed amendments on 30 April and the Court placed time limits on the hearing of the application. They were told that the purpose was, as I said, to clear up “one or two infelicities” in the original pleading when, in fact, it is plain that the new proposal was designed to do much more than that.
The justification for these late amendments is that the information upon which they are based only came to the attention of the applicant through the process of discovery in this proceeding “including as late as February 2010”. In her affidavit she asserted that she sought leave to file the proposed amended statement of claim to include the two additional causes of action “in answer to the documents produced by the Respondent on and after 19 January 2010”.
While it appears that the respondent was discovering documents as recently as January and February this year, that does not explain the delay in seeking leave to amend. The applicant conceded in cross-examination that all the documents “and events” included in what was then paragraph 102 (becoming paragraph 106, with the addition of further “particulars” following the further amendments during the hearing of the motion) were known to her by 15 June 2009 (T66/30). That includes the diary notes and the records of interview (Particulars (A)-(T)). No explanation was given for her failure to seek leave to make the amendments for another seven months. In his last set of written submissions Mr King claimed a delay of seven months was not unreasonable “having regard to the fact that for part of the time the applicant was unrepresented”. But the applicant said nothing of this in her evidence. Moreover, she conceded in cross-examination that she had no explanation for it. In any case, she was represented in June 2009 when she received the documents. She was also represented in October 2009 when the case was set down for hearing and, according to her solicitor’s submissions, she was only unrepresented between 22 December 2009 and 3 February 2010, in essence, only during the Christmas vacation.
In any event, as early as 11 January last year – more than thirteen months before the proposed amended statement of claim was served and six months before the proceeding was first listed for trial – the applicant wrote to the respondent’s solicitor complaining about the discovery and indicating that she would rely on certain matters as “particulars of aggravation in relation to damages at paragraph 79 of the Statement of Claim”. Paragraph 3 of that letter is almost identical in terms to the allegation in paragraph 110(i) of the proposed amended statement of claim. Paragraph 4 of the letter is in substance the same as paragraph 110(viii). Paragraph 6 of the letter is in substance the same as paragraph 110(ix). Paragraph 11 of that letter is in substance the same as the allegation in paragraph 110(x). The particulars to that subparagraph are identical to the matters raised in paragraph 11.
It is apparent from this letter that the applicant knew some, if not all, of the information more than twelve months before she first sought to amend the statement of claim. No evidence was adduced to explain why, in the circumstances, she failed to seek leave to amend for over a year.
Thus, delay has not been satisfactorily explained.
Leave to plead the matters set out in paragraphs 102-114 is therefore refused. It would not be the best way of promoting the overarching purpose to do otherwise. In my view, the interests of justice require that the trial proceed in the period assigned for it and on the basis of the causes of action the applicant chose to fight it when the proceeding was fixed for trial for the second time in October last year.
Category 5: Amendment to damages claims
These amendments are said not to change the nature of the case CommSec has to meet “in any material way at all”.
The proposed amendments generally seek to substitute for a fixed sum of general damages and to clarify that the damages are claimed “for the hurt, humiliation and distress to her consequential upon the unlawful sexual harassment of her by [X] and Mr Blomfield. They also increase the sums claimed for past and future medical expenses for disability discrimination (paragraph 87) and add (needlessly) the word “expert” before “medical evidence” in the so-called particulars.
I accept the applicant’s submission in this instance that the amendments do not change the nature of the case the respondent has to meet and, for this reason, with one proviso, I allow these amendments. The proviso relates to the claim in paragraph 77 for “an unspecified amount” instead of $10,000 by way of penalty for victimization. If the intention is merely to seek general damages, then the claim is superfluous because it is already made in the following paragraph. If the applicant’s intention is different, then it seems to me that the claim is misconceived. Section 94 of the SDA creates a criminal offence of victimization and imposes a penalty in the nature of a fine for corporate offenders. This proceeding is not in the nature of a criminal prosecution. It is an action for damages. In Qantas Airways Limited v Gama [2008] FCAFC 69 at [94] and [122] the Full Court confirmed that the damages which can be awarded under s 46PO(4) of the AHRC Act are entirely compensatory. No submission was directed to this question and the claim was first made in the original statement of claim. For this reason I will not now strike it out but at a suitable time I will hear argument about why I should not. In any event, the maximum penalty is 100 penalty units (or $11,000).
Category 6: Uncontentious amendments
These amendments appear in various places throughout the statement of claim. It is unnecessary to say anything about them. I am prepared to allow them all.
Costs
The applicant has had a partial measure of success. Even so, she sought an indulgence. In view of the history of the proceeding and the nature of many of the amendments, the respondent’s opposition was entirely reasonable and, for the most part, justified. The applicant should pay the respondent’s costs of the motion.
Orders
I direct the parties to bring in short minutes setting out the orders reflected by these reasons within seven (7) days.

I certify that the preceding three hundred and thirty-three (333) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.
Associate:
Dated: 9 July 2010

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
Legislation:		Australian Human Rights Commission Act 1986 (Cth), ss 3, 46PA, 46PF, 46PH, 46PO(3) Disability Discrimination Act 1992 (Cth), ss 42, 123 Fair Trading Act 1987 (NSW) ss 42, 46 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court Rules O 6 r 1, O 6 r 6, O 11 r 2, O 11 r 16, O 13 r 2 Human Rights Legislation Amendment Act (No. 1) (1999) (Cth) New South Wales Barristers’ Rules r 37 Revised Professional Conduct and Practice Rules 1995 r A.37 Sex Discrimination Act 1984 (Cth), ss 94, 106, 110 Trade Practices Act 1974 (Cth) ss 52, 53B
Cases cited:		Advanced Switching Services Pty Ltd v State Bank of New South Wales t/as Colonial State Bank (2001) ATPR ¶41-848 disapproved Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 applied Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 cited Austin v Civil Aviation Authority (1994) 50 FCR 272 cited Australian Securities and Investments Commission v Axis International Management Pty Ltd [2009] FCA 250 cited Bartlett v Swan Television & Radio Broadcasting Pty Ltd (1995) ATPR 41-434 cited BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 (PC) cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 applied Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 cited Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 considered Chan v Sellwood [2009] NSWSC 1335 cited Clyne v The New South Wales Bar Association (1960) 104 CLR 186 cited Courtaulds Northern Textiles v Andrew [1979] IRLR 84 cited Dey v Victorian Railways Commissioner (1949) 78 CLR 62 cited Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 cited D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 cited East, Re; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 applied Eastwood v Magnox Electric plc; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503 cited Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852 disapproved Gunns Ltd v Marr [2005] VSC 251 cited Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited Hewitt v ATP Tour Inc [2004] SASC 286 cited Hosking v Runting [2005] 1 NZLR 1 considered Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 cited Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 considered Malik v Bank of Credit and Commerce International S.A. (in compulsory liquidation); Mahmud Bank of Credit and Commerce International S.A. (in compulsory liquidation) [1998] AC 20 considered *Moorev Inglis* (1976) 9 ALR 509 considered NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 cited NRMA v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 cited Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388 cited Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 cited Qantas Airways Limited v Gama [2008] FCAFC 69 cited P v D [2000] 2 NZLR 591 cited Qantas Airways Ltd v Gama [2008] FCAFC 69 cited R v The Associated Northern Collieries (1910) 11 CLR 738 cited Ratcliffe v Evans [1892] 2 QB 524 cited Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198 considered Russell Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; (2008) 72 NSWLR 559 considered Shiels v James [2000] FMCA 2 cited Smith Kline & French Laboratories (Aust) Ltdv Secretary, Department of Community Services and Health (1990) 22 FCR 73 cited State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 not followed Taylor v Morrison [2003] FMCA 79 considered Travers v State of New South Wales [2000] FCA 1565 applied Webster v Lampard (1993) 177 CLR 598 cited
Date of hearing:	11 March and 30 April 2010
Date of last submissions:	17 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	333
Counsel for the Applicant:	Mr P E King
Solicitor for the Applicant:	Turner Freeman
Counsel for the Respondent:	Ms K Eastman with Ms G Wright
Solicitor for the Respondent:	Freehills

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1165 of 2008

BETWEEN:	VIVIENNE LOUISE DYE APPLICANT
AND:	COMMONWEALTH SECURITIES LIMITED Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	9 JULY 2010
WHERE MADE:	SYDNEY

JUDGE:	KATZMANN J
DATE:	9 JULY 2010
PLACE:	SYDNEY