FEDERAL COURT OF AUSTRALIA
Hanson v Burston (No 3) [2025] FCA 761
File number(s): NSD 1210 of 2020 Judgment of: YOUNAN J Date of judgment: 11 July 2025 Catchwords: PRACTICE AND PROCEDURE – application to amend points of claim under r 16.53 of the Federal Court Rules 2011 (Cth) to provide further particulars of an existing claim – where proposed amendment introduces a claim for issue estoppel – whether issue estoppel should be specifically pleaded – distinction between pleadings and particulars – where proposed amendments are not futile and no prejudice to opposing party is established – application granted
PRACTICE AND PROCEDURE – application under r 30.25 of the Federal Court Rules 2011 (Cth) to admit transcript evidence taken in another proceeding – where potential witness is reluctant to provide oral evidence – where relevance and utility of proposed evidence not established – application dismissed
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PO
Federal Court of Australia Act1976 (Cth) s 23
Parliamentary Privileges Act 1987 (Cth) s 16
Sex Discrimination Act 1984 (Cth) s 94
Federal Court Rules 2011 (Cth) rr 16.02, 16.41, 16.53, 30.25
Cases cited: Blair v Curran (1939) 62 CLR 464
Burston v Hanson [2022] FCA 1235
Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322
Dare v Pullham (1982) 148 CLR 658
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq) (1993) 43 FCR 510
Feltham v St Vincent’s Public Hospital [1993] NSWCA 95 at 17
Hanson v Burston [2022] FCA 1235
Hanson v Burston [2023] FCAFC 124
Hanson-Young v Leyonhjelm [2018] FCA 1688
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494
Plaintiff P1/2023 v Ruddock [2007] FCA 65; (2007) 157 FCR 518
Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Re Sterling; Ex parte EssandaLtd [1980] FCA 75; (1980) 30 ALR 77
Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66
Sadiqi v Commonwealth (No 2) [2009] FCA 1117; (2009) 181 FCR 1
Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199
Telnet Pty Limited v Takapana Investments Pty Limited (1994) 51 FCR 520
Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960
Voxson Pty Ltd v Telstra Corporation Limited (No 7) [2017] FCA 267; (2017) 343 ALR 681
J D Heydon, Cross on Evidence (14th ed, LexisNexis Butterworths, 2024) Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 78 Date of hearing: 23 June 2025 Counsel for the Applicant: Mr P Moorehouse with Ms R Kumar Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondent:
Continue reading Hanson v Burston (No 3)
Sign in free to access the full text
Details
- AGLC
- Hanson v Burston (No 3) [2025] FCA 761
- Case
- [2025] FCA 761
- Decision Date
CaseChat Overview and Summary
The case of Hanson v Burston (No 3) involves an application by the plaintiff, Hanson, to amend her points of claim to introduce a claim for issue estoppel and an application to admit evidence from a previous proceeding. The court was required to decide whether the proposed amendments were permissible under the Federal Court Rules 2011 (Cth) and whether the evidence sought from a previous proceeding should be admitted. The court had to consider the distinction between pleadings and particulars, the futility of the proposed amendments, and whether there was prejudice to the opposing party. Additionally, the court had to assess the relevance and utility of the proposed evidence and whether it should be admitted under the relevant rules.
The court found that the proposed amendments were not futile and did not establish prejudice to the opposing party. The court held that the distinction between pleadings and particulars was relevant, but in this case, the proposed amendments were essentially further particulars of the existing claim. The court also noted that while the particular issues of estoppel were not specifically pleaded, they were sufficiently identified in the submissions. The court granted the application to amend the points of claim. Regarding the evidence application, the court found that the applicant had not established the relevance and utility of the proposed evidence and that the potential witness had not been shown to be reluctant to give oral evidence. Therefore, the court dismissed the application to admit the evidence from the previous proceeding. The court reserved costs pending further orders.
In summary, the court granted the application to amend the points of claim to introduce issue estoppel as further particulars of the existing claim. The application to admit evidence from a previous proceeding was dismissed due to the lack of established relevance and utility of the evidence. Costs were reserved pending further orders.
The court found that the proposed amendments were not futile and did not establish prejudice to the opposing party. The court held that the distinction between pleadings and particulars was relevant, but in this case, the proposed amendments were essentially further particulars of the existing claim. The court also noted that while the particular issues of estoppel were not specifically pleaded, they were sufficiently identified in the submissions. The court granted the application to amend the points of claim. Regarding the evidence application, the court found that the applicant had not established the relevance and utility of the proposed evidence and that the potential witness had not been shown to be reluctant to give oral evidence. Therefore, the court dismissed the application to admit the evidence from the previous proceeding. The court reserved costs pending further orders.
In summary, the court granted the application to amend the points of claim to introduce issue estoppel as further particulars of the existing claim. The application to admit evidence from a previous proceeding was dismissed due to the lack of established relevance and utility of the evidence. Costs were reserved pending further orders.
Orders
Orders of the court
1. The applicant be granted leave to file and serve the Second Further Amended Points of Claim in the form annexed hereto.
2. The applicant’s interlocutory application seeking leave to read the oral evidence of Terrie-Lea Vairy taken in proceeding NSD 652 of 2020, pursuant to r 30.25 of the Federal Court Rules 2011 (Cth), be dismissed.
3. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Furthermore, while the applicant does not reference the particular paragraph(s) of the decisions on which she relies in relation to each claimed issue estoppel, that information is otherwise provided in the applicant’s submissions, and no real prejudice ensues from this.2. ADMISSION OF EVIDENCE APPLICATION The applicant seeks to rely on a transcript of Ms Vairy’s oral evidence taken in proceeding NSD 652 of 2020, which is the subject of Burston v Hanson [2022] FCA 1235. In that proceeding, Ms Vairy was found to be the victim of sexual harassment by the respondent. The applicant relies on r 30.25 of the FCR, which provides:A party may apply to the Court to read evidence taken in another proceeding. To guide what is otherwise an “unconfined” discretion, the applicant relies on the overarching purpose of the civil practice and procedure provisions, in s 37M of the FCA Act. 2.1 Applicant’s submissions The applicant submits that there are two bases upon which the evidence should be admitted. First, the applicant submits there is little utility in compelling the witness to give evidence in this matter, where she has already been cross-examined on identical issues. The applicant seeks to rely on Ms Vairy’s evidence to prove the same sexual harassment that was alleged and proved in the defamation proceedings. The applicant submits that, in circumstances where Ms Vairy gave evidence that was personally difficult and challenging, and where Ms Vairy has informed the applicant that she is disinclined to be involved in the present proceedings, she should not be compelled to give evidence. Second, the applicant submits that Ms Vairy has already given her relevant evidence and been cross-examined on these issues. The applicant submits she was found in the Defamation Proceedings to be a “reliable and truthful witness”, whose evidence was accepted. The applicant submits that if the evidence were admitted, the documents shown to Ms Vairy and tendered during her evidence in the defamation proceedings would be tendered in the present proceeding, so that her evidence can be properly understood. The applicant also conceded that this evidence would not be required if certain of the pleaded estoppels (that relate to Ms Vairy) were found to have arisen.2.2 Respondent’s submissions The respondent submits that leave should be refused on the basis that the applicant has failed to identify the particular facts she wishes to prove by the evidence given in the earlier proceedings: Telnet Pty Limited v Takapana Investments Pty Limited (1994) 51 FCR 520 at 524. The respondent submits that the integrity of the trial process is at risk if a witness who would prefer not to attend to give evidence or be cross-examined is excused on this basis. Finally, the respondent submits that there is no evidence that Ms Vairy cannot give evidence. The respondent tendered two letters which he relied on to prove that Ms Vairy may be prepared to give evidence, if reasonable adjustments were made. 2.3 Disposition
Decision
Reasons for decision
The proposed amendments in the Second Further Amended Points of Claim largely comprise issues estoppel that are said to arise from earlier defamation proceedings between the same parties: i.e. Hanson v Burston [2022] FCA 1235 and Hanson v Burston [2023] FCAFC 124 (Defamation Judgments). The applicant seeks leave to further particularise her claim for aggravated damages by way of these issues estoppel. The respondent opposes these proposed amendments. To the extent that there remains an objection to proposed amendments to the particulars of publication at paragraph 32(B1) and (B2), I am satisfied that the objection is met by identification of the publications in the respondent’s affidavit dated 26 November 2024, to which reference was made at the hearing of the interlocutory application. The remaining proposed amendments were not contested. The applicant claims aggravated damages for victimising conduct. Her particulars of aggravated damages are currently pleaded as follows:Particulars of aggravated damagesA.Mr Burston engaged in the acts of victimisation notwithstanding that he was aware at all relevant times that the allegations of him having sexually harassed his staff members that were the subject of the First, Second, Third, Fourth and Fifth Allegations were true. B.In that regard, Ms Hanson will rely on Mr Burston’s sexual harassment of Wendy Leach and Terrie-Lea Vairy. Further particulars of that sexual harassment are set out in [10(g) to (o)] and [10((p) to (eee)] (sic) of the Defence filed by Ms Hanson in the Defamation Proceedings. The further particulars of the claimed sexual harassment of Wendy Leach and Terrie-Lea Vairy in paragraphs 10(g) to (o), (p) to (eee) of the Defence filed by the applicant in the Defamation Proceedings are as follows:Wendy Leach(g)On or around 3 July 2015, Ms Leach commenced full-time employment for an architectural firm called Superdraft, located on the Gold Coast, Queensland, as an Architectural Sales Consultant. Ms Leach was responsible for obtaining new clients and referring work to draftsman for architectural services.(h)In or around August 2015, Ms Leach talked to the applicant for the first time over the telephone. At this time, the applicant worked for Superdraft in NSW.(i)Ms Leach would secure clients in her sales role and then refer those jobs to the applicant. Over the following year, Ms Leach and the applicant conducted regular meetings over the phone.(j)In or around August 2016, the applicant advised Ms Leach that he would become a Senator for Pauline Hanson’s One Nation party following the 2016 Federal election. The applicant offered Ms Leach the position of office manager in his Belmont, NSW office.(k)On 14 August 2016, the applicant sent an offer of employment to Ms Leach. He offered Ms Leach the position of office manager in his Belmont, NSW office.(l)Ms Leach was employed full time by the applicant on behalf of the Commonwealth under s 20 of the Members of Parliament (Staff) Act 1984 (Cth) (MOP(S) Act) from 1 September 2016 as an Electorate Officer B. The employment was covered by the Commonwealth Members of Parliament Staff Enterprise Agreement 2016–2019.(m)The applicant hired Ms Leach because he thought she was attractive and informed other staff that was why he hired her.(n)On about 1 May 2018, Wendy Leach and the applicant had a meeting in the applicants (sic) Toronto office during which Ms Leach became distressed. In response to her distress the applicant [said] to Ms Leach words to the following effect: “Oh Wendy, you probably just need a good fuck,” before adding, “I am a softy for a woman in distress”. The applicant then held Ms Leach’s face with his hands and said words to the following effect “I’m not joking… I can come to your house, no one needs to know… it’ll be the best fuck you ever had”.(o)The conduct of the applicant referred to in the preceding particular:A. was unwelcome; B.caused Ms Leach to feel objectified and distressed such that she needed to seek counselling; C.was inappropriate by reason of the employment relationship between the applicant and Ms Leach; andD.amounted to sexual harassment by the applicant in the work place. Terri-lea Vairy (sic)(p) In 2017 Ms Vairy was 43 years old. (q) In 2017 the applicant was 69years (sic) old, and was married.(r)On or about 1 May 2017 Ms Vairy commenced full time employment for the applicant as an Electorate Officer. (s)A few days after Ms Vairy commenced employment, the applicant made pejorative comments about Ms Leach saying words to the following effect to me (sic):i. “She’s getting a bit old”ii. “She’s hitting her 50’s”iii. “She’s overweight and loud”iv. “She’s not as attractive as I thought she was”the applicant told Ms Vairy that he would not have hired Ms Leach had he known she was so “old” and “unattractive” and then said words to the following effect “It’s good to have a good-looking Sheila in the office”. The applicant then took a call from his twin brother, Graham, and told his brother that he has “Miss World” sitting in front of him. (t)The comments by the applicant in the preceding particular made Ms Vairy feel disgusted and uncomfortable. (u)In about May 2017, a few days after the comments referred to in the preceding particulars, the applicant hugged Ms Vairy and gave her a kiss on the lips.(v)The applicant’s conduct referred to in the preceding particular made Ms Vairy extremely uncomfortable. (w)Over the next few weeks in about May and June 2017 the applicant persistently asked Ms Vairy to have lunch with him.(x)Ms Vairy initially declined the requests referred to in the preceding particular and felt uncomfortable that the applicant persisted in those requests. She eventually felt pressured to go to lunches with the applicant because he was her superior. At the lunches he purchased wine and insisted that Ms Vairy drink wine when she told him that she did not want to do so. Also during these lunches, the applicant would say things to Ms Vairy about her appearance namely that:(1) “You have sexy legs”(2) “Your legs look sexy in that dress”(3) “That’s my favourite dress”(4) “I love your hair like that”(5) “You’re wearing your hair the way I like it”(6) “That’s a sexy dress”(7) “You look sexy today”(8) “I don’t like winter because I can’t see your legs”The comments made Ms Vairy feel uncomfortable and they were unwelcome. (y)On about 15 December 2017 the applicant was in a Commonwealth Car with Ms Vairy and commented on her tan by enquiring if it was fake. He then touched her leg while saying “that’s nice”. (z)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (aa)On 15 December 2017 at about 9pm the applicant sent Ms Vairy a text message stating “I bought you a bottle of Frangelico it will be on your desk on Monday”. (bb)On about 22 February 2018, the applicant gave Ms Vairy a card that said “BEAUTIFUL PRETTY LOVELY Birthday Lady!” and had $100 inside. Ms Vairy tried to return the money to the applicant and he returned it to her by putting it down her shirt in between her breasts. (cc)The conduct of the applicant in the preceding particular made Ms Vairy feel shocked and degraded.(dd)On 9 February 2018, the applicant sent Ms vairy (sic) two text messages at about 9pm stating that he purchased another bottle of alcohol as a gift for me (sic). (ee) In or about February 2018, the applicant walked Ms Vairy back to Parklands Apartments, where she was staying and he tried to passionately kiss her at the apartment. (ff)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (gg) In about March 2018 at the applicant’s office, the applicant said to Ms Vairy words to the following effect “You have perfect sized breasts, most girls have them done too big but yours are just perfect.”(hh)The comment referred to in the previous particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (ii)In about late-March 2018, the applicant said to Ms Vairy (during work hours while they were in his office):“I am in love with you. I’m sorry if this makes you feel uncomfortable and I’m not telling you this because I want to fuck you, of course I want to fuck you, what man wouldn’t? But that’s not my reason for telling you this. Please can you keep this to yourself, I just wanted you to know how I was feeling”(jj) The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (kk) In about late March 2018 the applicant and Ms Vairy were sharing a care (sic) ride and when Ms Vairy was exiting the vehicle the applicant attempted to kiss her.(ll)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (mm)In about May 2018, Ms Vairy had a discussion with the applicant telling him that she was uncomfortable about the lunches and the perception that they had a relationship to which the application (sic) said words to the effect of, “You shouldn’t give a fuck what people think” or “are you still worried what people might be saying?”(nn)On 3 May 2018, at about 9pm, the applicant sent me (sic) a text message asking if he could call me (sic). (oo)On 4 May 2018 at about 6pm, the applicant sent me (sic) a text message stating “Check your boot cheeky girl”. Later that evening, when she checked the boot of the car, she found a bottle of Dimple Scotch Whisky. (pp)The applicant would often sign off his messages to Ms Vairy with either a love hear emoji, “XOXO” or “I love you”. (qq) On 16 May 2018, the applicant sent Ms Vairy a text message at around 7pm after I (sic) went to a beautician stating, “I hope you had a good lashing this afternoon”. (rr)In about June 2018 the applicant stared at Ms Vairy’s buttocks and licked his lips.(ss)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (tt)In about September or early October 2018, after a staff meeting on a Saturday, the applicant walked Ms Vairy to her car then cupped her face in both of his hands and kissed her on the lips. (uu)The kiss made Ms Vairy feel very uncomfortable and was unwelcome but she was concerned to raise the matter in case it jeopardised her employment. (vv) During 2018 the applicant asked Ms Vairy personal questions, namely that:(1)“Have you had breast implants?”(2)“What type of men do you go for?”The questions made Ms Vairy feel distressed and uncomfortable. (ww)During her employment, the applicant would kiss Ms Vairy goodbye on the cheek. After some time, the applicant started to kiss Ms Vairy goodbye on her lips instead of her cheek.(xx)The kisses made Ms Vairy feel very uncomfortable and they were unwelcome but she was concerned to raise the matter in case it jeopardised her employment.(yy)From time to time throughout 2018 the applicant would hug Ms Vairy, suggesting that she needed a hug because she looked stressed. (zz)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (aaa)From time to time throughout 2018 the applicant would compliment Ms Vairy’s appearance and then follow up the compliment by touching her. Namely, he said “I love the bracelet you’re wearing today” and then picked up her hand for a closer look; the applicant commented on her dress and said she looked “sexy” and then caressed the fabric of her dress.(bbb)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (ccc) During her employment in 2018 the applicant would often compare Ms Vairy’s appearance to other women in the office he (sic) said to her words to the following effect “I prefer watching your legs walk by my office instead of Wendy and Simon. You have the best legs in the office, Roz has got good legs too.” (ddd)The conduct of the applicant referred to in the preceding particular was unwelcome and made Ms Vairy feel distressed and uncomfortable. (eee)During her employment, the applicant gave Ms Vairy gifts.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.