FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited (No 2)
[2010] FCAFC 118
Citation: Dye v Commonwealth Securities Limited [2010] FCAFC 118 Appeal from: Dye v Commonwealth Securities Ltd [2010] FCA 720
Dye v Commonwealth Securities Ltd (No 3) [2010]
FCA 903Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED (ACN 60 067 254 399) File number: NSD 909 of 2010 Judges: MARSHALL, RARES AND FLICK JJ Date of judgment: 14 September 2010 Catchwords: PRACTICE AND PROCEDURE – amendment of pleadings – delay – Pt VB of the Federal Court of Australia Act 1976 (Cth) and O 13 r 2 of the Federal Court Rules – principles for considering grant of amendment to pleading – relevant factors to weigh and balance: nature and importance of amendment to party seeking it, delay, explanation or lack of explanation for delay, cost and prejudice
PRACTICE AND PROCEDURE – pleadings – injurious falsehood – pleading must set out words of publication complained of – actual damage to be pleaded with as much precision as possible – actual damage can include general loss of business or work opportunity – pleading of malice must allege that the publication was actuated by malice being the dominant motive of an intention to injure the plaintiff/applicant – injurious falsehood a triable issue sufficiently connected to proceedings to justify amendment
HUMAN RIGHTS – statutory interpretation – s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) – claims justiciable in application to court after complaint terminated by Australian Human Rights Commission – whether proposed amendments in proceedings outside the complaint to the Commission for which s 46PO(3) creates a cause of action – s 46PO(3) contemplates some ambit to plead as unlawful discrimination conduct, acts, omissions or practices in addition to specific matters identified in complaint terminated by Commission – terms of s 46PO(3) suggest a degree of flexibility while imposing constraint upon ability of complainant to rely on substantially similar matters to those in terminated complaint but not previously raised with the Commission
HIGH COURT AND FEDERAL COURT – suppression orders – suppression of name – s 50 of the Federal Court of Australia Act1976 (Cth) – principle of open justice – suppression only if necessary to prevent prejudice to the administration of justice or the security of the Commonwealth – assertion that allegations are “scandalous” or “of a deeply personal and private nature” insufficient to warrant exercise of power to grant suppression order – no jurisdictional foundation for exercise of court’s power to continue suppression of name
Legislation: Australian Human Rights Commission Act 1986 (Cth)
Crimes Act 1900 (NSW) s 578A(2)
Evidence Act 1995 s 140(2)
Fair Trading Act 1987 (NSW) s 68
Federal Court of Australia Act 1976 (Cth) Pt VB
Federal Court Rules O 13 r 2
Trade Practices Act 1974 (Cth) ss 52 and 53BCases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 applied
Briginshaw v Briginshaw (1938) 60 CLR 336 applied
Brisbane South Regional…
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- Case
- [2010] FCAFC 118
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the plaintiff's proposed amendments to her pleadings were permissible under the Federal Court Rules and whether they should be granted in light of the delay in making the amendments. The court also had to consider the principles for granting leave to amend pleadings, weighing factors such as the nature and importance of the amendment, the delay in seeking the amendment, the explanation for the delay, and the potential cost and prejudice to the opposing party. Additionally, the court needed to interpret section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to determine if the proposed amendments fell within the scope of permissible claims after the termination of a complaint by the Commission.
The court found that the plaintiff's proposed amendments were permissible and should be allowed. It concluded that the proposed amendments were significant and related to the core of the plaintiff's claims. The court acknowledged that there was some delay in making the amendments but found that the plaintiff had provided a reasonable explanation for the delay and that the prejudice to the defendant was not significant. The court also held that section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) allowed for some flexibility in pleading unlawful discrimination claims, even if they were not the subject of the initial complaint to the Commission. The court allowed the plaintiff to make the proposed amendments and set out specific conditions for the further amended statement of claim.
The court granted leave for the plaintiff to file and serve a further amended statement of claim, limited to specific amendments outlined in the order. The court set a deadline for the defendant to file and serve any defence to the amended statement of claim. The costs associated with the amendments were to be borne by the plaintiff, and each party was to bear their own costs for the application to amend. The court also reserved its reasons for the orders and reserved judgment on the amendment proposed to paragraph 18(y). The respondent was ordered to pay one half of the appellant’s costs of the appeal and application for leave to appeal.
Orders
Orders of the court
1. The schedule to the orders made on 2 September 2010 be amended by adding at the end of paragraph (c)(ii) “and 18(y)”.
2. The order made on 1 September 2010 be set aside.
Note:
1. Leave to appeal be granted.
2. On or before 8 September 2010 the appellant file and serve a notice of appeal in the form of the draft notice being annexure SPR 17 to the affidavit of Sian Patricia Ryan sworn 16 July 2010.
3. The appeal be allowed in part.
4. Orders 2, 3 and 4 made by Katzmann J on 23 August 2010 be set aside and in lieu thereof the following orders be made:
(1) the applicant have leave to file and serve on or before 30 September 2010 a further amended statement of claim that makes only the amendments provided for in the schedule below;
(2) on or before 28 October 2010 the respondent file and serve any defence to the further amended statement of claim;
(3) the applicant pay the respondent’s costs thrown away by reason of the amendments;
(4) the costs of the application to amend be each party’s costs in the proceedings;
(5) the proceedings be listed for directions before Buchanan J not before 11 a.m. on 3 September 2010.
5. Judgment on the amendment proposed to paragraph 18(y) stands reserved.
6. The respondent pay one half of the appellant’s costs of the appeal and application for leave to appeal.
7. The Court reserves its reasons for these orders.
Schedule
The amendments shall do no more than:
(a) insert the amendments marked in colour in the draft amended statement of claim commencing at appeal book volume A at page 119 (“the Draft Pleading”) to paragraphs 12, 14, 15, 37, 38, 45 (except for paragraphs 45(d), (e) and (f)), 74, 75 (adding “PO” after “46” and deleting the words in paragraph 75(a) after “SDA applies” up to and including “Behaviour”);
(b) re-plead in proper form such of the publications relied on as injurious falsehoods that the applicant has identified in the Draft Pleading as particulars to paragraphs 92(b)(i) to (vi) inclusive, 92(c)(ii), (iii), 92 (d)(i)-(iii) inclusive, 92(e)(i), (ii), 92(f)(i), (ii), 92(g)(i)-(v) inclusive, (vii)-(ix) inclusive, 92(h)(i), 92(i)(i), 92(j)(i) and (ii) and the material facts to support the causes of action for each such injurious falsehood alleged;
(c) insert the amendments proposed in the Draft Pleading in:
(i) the introduction to paragraph 18;
(ii) subparagraphs 18(b) (including particular (i) but not the words “including but not limited to”), 18(t) (adding the particular that “the applicant was never issued with a performance feedback and review in that position”);
(iii) paragraphs 31, 32, 47(i), (p), (dd), (hh), (ii), 58-67;
(iv) the words “of the respondent” in the introduction to paragraph 68;
(v) paragraphs 68(s) and (u), 69 (with such amendment, if any, to the words “the October 2006 Contract” as is necessary to define precisely the contract or contracts pleaded earlier on which she relies) and 73(e);
(vi) in respect of which leave was granted by the orders made by the primary judge on 21 July 2010 and 23 August 2010.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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