Har v De Souza
[2012] FCA 360
•3 April 2012
FEDERAL COURT OF AUSTRALIA
Har v De Souza [2012] FCA 360
Citation: Har v De Souza [2012] FCA 360 Parties: NANCY MEE YING HAR v DUNSTAN DE SOUZA and THE PARTIES IN THE ATTACHED SCHEDULE 1 File number(s): NSD 1260 of 2011 Judge: NICHOLAS J Date of judgment: 3 April 2012 Date of hearing: 3 April 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 18 Counsel for the Applicant: Ms R Francois Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondents: Ms K Eastman Solicitor for the Respondents: Middletons
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1260 of 2011
BETWEEN: NANCY MEE YING HAR
ApplicantAND: DUNSTAN DE SOUZA
First RespondentTHE PARTIES IN THE ATTACHED SCHEDULE 1
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
3 APRIL 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application by the applicant for a direction limiting the time that the applicant is to give oral evidence to two hours on any given day is refused.
2.The time within which the respondents are to file and serve any affidavit or report from Dr Roberts is extended to 4.00pm, 23 April 2012.
3.The applicant is to file and serve any affidavits in reply by 4.00pm, 7 May 2012.
4.The applicant is to file and serve by 4.00pm, 7 May 2012:
(a) a detailed statement of particulars of the damages claimed by the applicant;
(b)an indexed and paginated bundle of documents that are to be tendered by the applicant at the hearing.
5.The respondents have leave to reissue subpoenas for production to Dr Margaret Patricia Rose and Edgecliff Medical Centre returnable before a Registrar on Wednesday 11 April 2012 with service to be effected by no later than 12.00 noon tomorrow.
6.In addition to the dates already provisionally allocated for the hearing, the week of 25 June 2012 is also provisionally allocated for the hearing.
7.Paragraph 4 of Annexure B in the Orders made on 2 April 2012 by Nicholas J be amended to refer to “4 March 2009” rather than “4 March 2008”.
8.The proceeding is to stand over for directions to 9.30 am on 14 May 2012.
9.Costs of today be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1260 of 2011
BETWEEN: NANCY MEE YING HAR
ApplicantAND: DUNSTAN DE SOUZA
First RespondentTHE PARTIES IN THE ATTACHED SCHEDULE 1
Second Respondent
JUDGE:
NICHOLAS J
DATE:
3 APRIL 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before me is an application by the applicant for a direction that she not be required to give oral evidence at the trial for more than two hours on any given day. The application is opposed by the respondents. The background to the application may be briefly stated.
Between 2002 and 2011 the applicant was employed by the firm Collins Biggers & Paisley (CBP) as a solicitor. In late 2008 the applicant became pregnant. In early 2009 various partners of CBP became aware of her pregnancy. The applicant then had a number of meetings with various partners of CBP (including at least some of those who knew of her pregnancy) and others employed in its business. She alleges that at these meetings there was discussion concerning her pregnancy, the possibility of her taking maternity leave, her performance in her employment by CBP and other related matters. It is the applicant’s case that at these meetings she was spoken to harshly and inappropriately and that her competence and performance were criticised without any fair or proper foundation. The applicant alleges that by their conduct the respondents unlawfully discriminated against her in her employment by reason of her sex and her pregnancy.
The applicant’s employment was terminated in July 2011 after an extended period of absence which apparently commenced not long after the meetings to which I have referred took place.
The applicant claims damages from the respondents for loss and damage which she alleges she has suffered as a result of unlawful discrimination by the respondents. Among other things, the applicant alleges that she continues to suffer distress, anxiety and depression as a result of their unlawful conduct. The applicant says that she is no longer able to work as a solicitor.
The trial of the proceeding, which has been fixed for two weeks, is scheduled to commence on 4 June 2012. Since the applicant’s evidence in chief is to be given by affidavit, the direction sought by the applicant primarily concerns the length of time during which the applicant may be cross-examined on any given day. The respondents’ counsel has informed me that the cross-examination of the applicant is likely to take two or three days even if I do not make the direction sought by the applicant. That equates to a cross-examination of between 8 and 12 hours in length. If the applicant’s cross-examination was limited to 2 hours per day, it would take between 4 and 6 hearing days to complete her evidence.
In support of the application for a direction limiting her oral evidence to two hours of evidence per day the applicant relies upon medical evidence including a report of Dr Jonathan Phillips. The evidence tendered by the applicant also includes a letter from Dr Wendy Roberts (who is expected to give evidence in the respondents’ case) to the respondents’ solicitors and a further report of Dr Phillips responding to some suggestions made by Dr Roberts.
According to Dr Phillips, the applicant suffers from a major depressive disorder and related anxiety. Dr Phillips’ evidence suggests that the applicant will experience difficulties in giving evidence as a result of her depressive disorder particularly when it comes to maintaining cognitive focus. Dr Phillips also says that he expects the applicant will:
… cope poorly with the task required from her in the court, particularly that she will fatigue readily in the process of giving evidence, that she will fail to properly comprehend questions put to her and that she will fail to marshal information in a manner which is necessary at the time, and that her answers to questions are likely to be confused and off the point.
Dr Phillips says that he considers that the situation will become even worse if the proceedings are protracted and that this will be to the applicant’s significant disadvantage. He also says that there is an additional risk, the extent of which is difficult to evaluate, that the applicant may suffer “… a catastrophic reaction and be unable to continue with [her] evidence”. With these matters in mind Dr Phillips concludes that the applicant is likely to be less stressed and able to perform at a better cognitive level if her evidence is restricted to a two hour period on any given day.
Whether or not the applicant suffers from a major depressive disorder may not be an issue at the trial. The respondents are yet to file their medical evidence. But it is apparent that Dr Roberts shares at least some of Dr Phillips’ concerns about the impact that the applicant’s emotional and psychological fragility might have upon the applicant’s ability to give evidence for more than two hours at a time. Dr Roberts made a number of helpful suggestions as to how to manage these concerns. However, at the end of the day she thinks it best that no hard and fast rules be set at this stage.
For the purpose of considering the present application I assume, consistent with Dr Phillips’ evidence, that the applicant suffers from a major depressive disorder and related anxiety symptoms. I also assume, on the basis of the evidence presently before me, that the applicant’s emotional and psychological condition is fragile and that she will at times experience cognitive difficulties and considerable distress when giving her evidence.
There is no evidence before me from the applicant in relation to her willingness or capacity to give evidence in the usual way. Nor have I had the opportunity to observe the applicant in court at any stage in a way that would permit me to form a view based upon my own observations in relation to her capacity to give oral evidence for more than two hours on any given day.
I do not think it is desirable to impose restrictions on the time spent by the applicant in giving her oral evidence in advance of the trial beyond noting that I would not usually expect a witness to give evidence for more than 2 hours without being given the opportunity to take a break. In the present case there will certainly be limits on the length of time which the applicant may be expected to give oral evidence without being permitted to take a break. And if I take the view that the break needs to be lengthy then I will of course make an appropriate direction.
Dr Phillips emphasised that the applicant may suffer even greater distress and anxiety if the proceeding becomes protracted. I am very mindful of this possibility. I think it highly desirable that the applicant get through her evidence as quickly as practicable having regard to her physical and mental condition at the time. I am therefore not persuaded that it is in the applicant’s interests to adopt a hard and fast approach that would limit her oral evidence to no more than 2 hours on any given day.
It may be appropriate for a professional person or friend or relative (who is not giving evidence in the applicant’s case) to be present in court to provide the applicant with support and assistance if required. This too is something that may be addressed at the trial but it is also something for the applicant or her legal representatives to arrange.
Given the possibility that the applicant’s evidence might be spread over three to five days rather than two to three days, it is important that her solicitor ensures that other witnesses in her case are available to be called as and when required in order that the time set aside for the hearing of this matter is utilised efficiently. The applicant has served affidavits from a number of lay witnesses and they should be available to give evidence during any period that the applicant is temporarily excused from continuing with her evidence.
I should mention one matter that was canvassed in argument concerning the applicant’s evidence. I think the applicant’s solicitors should ensure that she is available to give evidence in the afternoon of the first day of the trial. This will allow time for the applicant’s opening and to deal with objections to her affidavit evidence. The respondents may open their case the following morning with the applicant to resume her evidence later that day. This will allow me an opportunity to observe the applicant when giving evidence over two short sessions spread over the first two days of the hearing.
In the circumstances I do not propose to make the direction sought by the applicant. What restrictions should be imposed on the cross-examination of the applicant is a matter that I will re-examine shortly before the commencement of her cross-examination by counsel for the respondents and during the course of that cross-examination as it unfolds.
I will make an order refusing the application. I will also make other procedural orders that are not controversial.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 5 April 2012SCHEDULE 1 – THE RESPONDENTS
PAUL BANNON
Second Respondent
JOHN BOWMAN
Third Respondent:
GAVIN GREIGHTON
Fourth Respondent
NICK GRENNAN
Fifth Respondent
SIMON FRASER
Sixth Respondent
PETER HARKIN
Seventh Respondent
STUART HETHERINGTON
Eighth Respondent
SAM INGUI
Ninth Respondent
DAVID KENNEDY
Tenth Respondent
BRAD KERMOND
Eleventh Respondent
GOPINATH KRISHNAN
Twelfth Respondent
KRISTEN LOPES
Thirteenth Respondent
BRENDAN MAIER
Fourteenth Respondent
DAVID MILLER
Fifteenth Respondent
PETER MORAN
Sixteenth Respondent
LINDA MURPHY
Seventeenth Respondent
GARY NEWTON
Eighteenth Respondent
ALEX OSTERMAYER
Nineteenth Respondent
ANTHONY PERKINS
Twentieth Respondent
ANTHONY RIORDAN
Twenty First Respondent
CHRIS RUMORE
Twenty Second Respondent
AVENDRA SINGH
Twenty Third Respondent
GEOFF STANDEN
Twenty Fourth Respondent
JUSTIN ADAM
Twenty Fifth Respondent
KEITH BETHLEHEM
Twenty Sixth Respondent
MARTIN DEUTSCH
Twenty Seventh Respondent
MAYSAA PARRINO
Twenty Eighth Respondent
LEANNE WALKER
Twenty Ninth Respondent
RICK BENSTED
Thirtieth Respondent
LUKE SOLLY
Thirty First Respondent
DAVID KHAN
Thirty Second Respondent
GREG SKEHAN
Thirty Third Respondent
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