Mansell v Centrelink
[2008] FMCA 127
•6 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANSELL v CENTRELINK | [2008] FMCA 127 |
| HUMAN RIGHTS – Disability discrimination. PRACTICE AND PROCEDURE – Amendment of points of claim – factors for consideration – subject matter of proposed amendment previously struck out by consent – matter substantially part heard – applicant’s case almost complete – case management – interests of justice – prejudice to respondent – application to amend dismissed. |
| Disability Discrimination Act 1992 (Cth) ss.5, 6 Federal Magistrates Act 1999 (Cth) ss.3, 42 Federal Magistrates Court Rules 2001 (Cth) rr.1.03, 4.05(1) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss.44, 45 |
| Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Mahmoud v The Owners’ Corporation Strata Plan 811 [No 2] [2006] FMCA 1711 State of Queensland & Anor v JL Holdings (1997) 189 CLR 146 |
| Applicant: | PAULINE ANNETTE MANSELL |
| Respondent: | CENTRELINK |
| File number: | PEG 63 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 6 February 2008 |
| Date of last submission: | 6 February 2008 |
| Delivered at: | Perth |
| Delivered on: | 6 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Aldrich |
| Solicitors for the Applicant: | Aldrich & Associates |
| Counsel for the Respondent: | Ms P. Giles & Ms S. Oliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Compliance with the Federal Magistrates Court Rules 2001 be waived to the extent necessary to allow the Applicant to be taken to have made an oral application to file Substituted Points of Claim in terms of the document so entitled and lodged with the Registry on 5 February 2008.
The application be dismissed.
The Applicant file and serve by 4:00pm on 29 February 2008 a Final Amended Points of Claim, properly particularised, and amended to reflect:
(a)the Court’s orders made on 13 December 2007; and
(b)the strike out, by consent, of the Applicant’s claim of indirect discrimination.
The Applicant to pay the Respondent’s costs of the directions hearing on 31 January 2008, and of today, and if not agreed, the argument on quantum of costs be adjourned to 10:15am on 21 April 2008.
AND THE COURT NOTES THAT
The Application is listed for further Hearing on Monday 21 April 2008 at 10:15am and Tuesday 22 April 2008 at 10:15am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 63 of 2007
| PAULINE ANNETTE MANSELL |
Applicant
And
| CENTRELINK |
Respondent
REASONS FOR JUDGMENT
(Amended from the transcript)
The Applicant purported to file a substituted statement of claim on 5 February 2008, in the Registry. It seems that the Applicant seeks leave to have the substituted points of claim substituted for the existing amended or revised points of claim. However, no application, as such, has been filed and the application is unsupported by affidavit by either the Applicant or the Applicant’s solicitors.[1]
[1] Federal Magistrates Court Rules, 2001 (Cth), r.4.05(1) (“FMC Rules”).
The Respondent opposes any application to substitute or amend the points of claim.
It is necessary to have regard to the litigation history of this matter, which is as follows.
On 11 April 2007, the application was filed. It was supported by affidavit and it did include a claim of indirect discrimination under section 6 of the Disability Discrimination Act, 1992 (Cth).[2] A response was filed on 24 April 2007 and the matter came before the Court on 17 May 2007, for a first directions hearing. At that time the Applicant was directed to file and serve points of claim and any application for an extension of time, by 7 June 2007.
[2] “Disability Discrimination Act’.
The Court also ordered that the points of claim be particularised and that a defence then be filed and served by 28 June 2007, and there were orders for the filing of affidavits and submissions and the matter was set down for a two day hearing on 9 and 10 October 2007. The points of claim and defence were duly filed, but on 20 July 2007 there was an application by the Applicant for an extension of time, by eight weeks, on the times specified in the orders of 17 May 2007. It is unnecessary to deal with the reasons for that application. The application was not seriously opposed and the times were extended and the matter was re-listed for hearing for two days, on 13 and 14 December 2007.
At the hearing on 13 and 14 December 2007, there was an application by the Respondent that the indirect discrimination claim, under section 6 of the Disability Discrimination Act, should be struck out and the claim proceed only as a section 5 Disability Discrimination Act direct discrimination claim.[3] The Applicant opposed the Respondent’s application, saying that section 6 applied to the whole case and indicated a willingness to redraft or reformulate what were then described as “submissions” if necessary.[4] The Court observed in response to that as follows:
Well, can I say that the difficulty that the court has with that Ms Aldrich is that at least on the face of it there is some force to what the respondent says and it says, well, there is no formulation or particularisation of the claim for indirect discrimination under the various factors or elements that are inherent in or isolated by section 6 and paragraphs (a) to (c) of section 6 of the Disability Discrimination Act. That mightn’t be such a problem for you but for the fact that I also think there is some force in the respondent’s submission that there is simply no evidence as to the indirect discrimination elements or no evidence which ultimately the court could rely on.
What follows from that is that if the case is to proceed now, it is effectively in a position where the section 6 claim simply can’t succeed and the only way that the court could deal with it would be if the matter were to be adjourned and further evidence were to be submitted and the points of claim and then the points of defence amended. All of that in circumstances where the court ordered, some considerable time ago, that the hearing in the matter be by affidavit and that was as long ago as 17 May 2007, in circumstances where it’s been set down for two days and in circumstances where it has been adjourned already, having been set down for two days in October, where the Federal Magistrates Act under section 3 and 42 requires, albeit an informal exercise, for judicial power, also a quick exercise of judicial power.[5]
[3] Transcript at 11-15.
[4] Transcript at 17.
[5] Transcript at 17.
Agreement followed from Counsel for the Applicant and the Court then continued as follows:
Well, that these days is becoming increasingly difficult, so unless you have some application to make I can say to you that on the present state of the papers the court would be inclined to agree with the respondent’s submissions that any reference to section 6 be struck out.[6]
[6] Transcript at 17-18.
Counsel for the Applicant acknowledged that, and Counsel for the Respondent then said that the Respondent would not object to a short adjournment if the Applicant’s Counsel wanted to take instructions. The matter was then adjourned, according to the transcript from 11.15 am to 11.46am,[7] and when the Court resumed Counsel for the Respondent advised that:
I have conferred with my client, your Honour, and we have agreed that section 6 should be struck out.[8]
[7] Transcript at 19.
[8] Transcript at 19.
That is, that the indirect discrimination claim be struck out. The Court then went on to make formal orders on other matters, and by consent the indirect discrimination claim was struck out.[9] Thus the case proceeded on 13 and 14 December 2007 on the basis that there was no indirect discrimination claim. There was an ongoing issue as to whether or not the section 5 direct discrimination claim had been properly particularised and the Court ordered that the Applicant provide amended points of claim, particularising the direct discrimination complaint.[10]
[9] Transcript at 19-20.
[10] Transcript at 20.
The case then proceeded. Evidence was called from Ms Vogiatzakis, injury management consultant and senior psychologist; Dr Ong, a general practitioner for Ms Mansell; Mr Taylor, a clinical psychologist, who had seen Ms Mansell; Dr Proud, a psychiatrist, who had seen Ms Mansell; Ms Hutchings, a public servant; Ms Mansell’s daughter; Ms Lee, a shop assistant; and Ms Mansell herself. That took two days. Ms Mansell was subjected to a prolonged and probing cross-examination and for Ms Mansell that proved clearly to be traumatic and distressful.
The evidence was complete at the end of the two days, except for Ms Mansell’s re‑examination and the transcript reveals that the evidence of Ms Mansell was thus not completed.[11] Her re‑examination was not conducted, because at that time she was apparently incapable of continuing.[12]
[11] Transcript at 168.
[12] Transcript at 168.
To go back a little, when the matter resumed on the second day, that is 14 December 2007, the Court was advised that the Respondent had been provided with revised points of claim by the Applicant, but that there were still some “lingering concerns” as to whether the respondent “really is fully informed about the thrust of every part of the claim”.[13]
[13] Transcript at 87.
The matter was left on the basis that further submissions would be made later or once the Applicant had completed her evidence at the end of the second day. The issue, however, arose again during the course of the day, part way through the second day, in the context of cross‑examination and the Applicant objecting or at least pointing out to the Court that the Respondent had cross-examined, without objection at the time of cross-examination, on both the old and the revised points of claim. Pertinently, Counsel for the Respondent said this:
I spoke to Ms Aldrich during a break and I pointed out to her that points 10 in the old points of claim, points 10D, G, I and J are not actually referred to in the revised points of claim. I wanted to know whether they were abandoned or whether they were proceeded with and I asked if they were being proceeded with, whether we could have particulars of those. So that’s where the matter was left.[14]
[14] Transcript at 142.
At the end of day two Counsel for the Respondent rose and said the following:
There are several matters in the original points of claim, which are not mentioned in the revised points of claim. I would like advice from Ms Aldrich, within a reasonable time, as to whether the matters which are not mentioned in the revised points of claim, are abandoned, whether in light of the witness’ evidence any other parts of the revised points of claim are abandoned and that if those matters in the initial points of claim, which are not mentioned in the revised points of claim are still persisted with, we would like particulars. We seek an order for particulars of those matters.[15]
[15] Transcript at 169.
The Court indicated that it was prepared to leave the matter on the basis that the respective instructing solicitors would write to one another, hopefully achieve a satisfactory disposition of the matter, but if not the matter would be brought on for a short directions hearing early in the New Year. In context it is clear that what was being referred to above were particulars of the revised points of claim and the revised points of claim itself, not the claim of indirect discrimination, which had already been struck out by consent. The matter was then listed for further directions in any event for 31 January 2008.
Exhibit R3 is a letter from the Respondent’s solicitors to the Applicant’s solicitors which indicates that the Respondent’s instructing solicitors wrote seeking particulars of their revised points of claim and advice as to whether any parts or particular parts of the claim had been abandoned and if they were not abandoned then particulars in relation to those matters, and in much the same terms as Counsel for the Respondent outlined at the close of the hearing on 14 December 2007. It would appear that there was no formal response to that letter.
The matter came on for directions on 31 January 2008. The Applicant sought to tender substituted points of claim at that hearing. The Court indicated, clearly in the circumstances, that there was no application before it and no notice of any application, either to the Court or the Respondent, to do anything with respect to filing substituted points of claim or otherwise amending the points of claim. In those circumstances the matter was adjourned to 6 February 2008 – to today – to give the Applicant an opportunity to make any application it wished to make.
The Applicant purported to file a substituted points of claim on 5 February 2008. No application as such or affidavit in support was filed. Significantly, the substituted points of claim seek to amend the existing revised points of claim by including a claim of discrimination on the basis of section 6 of the Disability Discrimination Act, thus alleging indirect discrimination, and by adding a claim in negligence at common law.
It is against that history that the Court comes to assess whether any application to amend the points of claim or file a substituted points of claim, should be granted.
The Court is prepared to treat what has been said by the Applicant today as an oral application to file the substituted points of claim and to thereby amend the points of claim, and to the extent necessary the Court waives compliance with the FMC Rules requiring a written application.
It is trite law that the interests of justice prevail over case management when considering applications of this type.[16] The interests of justice involve a consideration of questions of prejudice to all parties and also to witnesses for the parties.
[16] State of Queensland v JL Holdings (1997) 189 CLR 146 at 154 and 155 per Dawson, Gaudron and McHugh JJ; at 166 per Kirby J; Mahmoud v The Owners’ Corporation Strata Plan 811 [No 2] [2006] FMCA 1711 at para 7 per Lucev FM.
In circumstances where:
a)a claim of indirect discrimination was withdrawn by consent before lunch on the first day of the hearing;
b)the Applicant’s case on that amended basis was run over two days and except for the re-examination of the applicant herself, the applicant’s evidence is complete; and
c)the Applicant has at least had seven weeks (or six weeks with a discount for Christmas) and in those circumstances has not filed a substituted statement of claim until yesterday and then not in proper form and unsupported by any affidavit evidence to explain the changes or the delay,
it must be the case that the Applicant faces a difficult task to persuade the Court to accede to an application to amend the points of claim or file substituted points of claim.
Point (c) above, the failure to give notice, is not, of itself, fatal, and alone would not be enough to warrant rejecting the substituted statement of claim. However, the Court considers that significant prejudice accrues to the respondent by reasons of points (a) and (b) above. The case has been conducted thus far (and the Applicant’s case is complete save for the re-examination of the Applicant, and the Respondent has completed cross-examination of all the Applicant’s witnesses) on the basis of a direct discrimination claim.
To grant leave to now re-include a claim struck out by consent would be odd enough, but to do it in circumstances where all of the Applicant’s witnesses have already been cross-examined and where to grant the claim would require some, if not all, of them to be recalled, would be a significant prejudice and inconvenience to the witnesses and prejudicial to the Respondent who would, at significant cost, have to prepare for and conduct a further cross-examination and possibly file further affidavits to deal with the factual material upon which the Applicant relies, but of which, as the Court observed, on the first day of the hearing, there is presently no evidence on affidavit in relation to the indirect discrimination claim, although it would appear that the indirect discrimination claim, now filed, is at least in part based on evidence already given in the proceedings.
The prejudice referred to in respect of the indirect discrimination claim is exacerbated by the application to amend, at this late stage, to add a claim in negligence. There would be, if any application to amend were granted, a corresponding increase in the length of the hearing, adding, if the part-heard proceedings are a guide, at least one day and possibly a second. That would mean that what was not necessarily a very complex case might come to occupy five to six days of the Court’s and the parties’ time, when it was originally listed for two days and is presently listed for a further two days, making four days in total.
It might be said by the Applicant that the amendments concerning the indirect discrimination claim relate to or are supported by particulars seemingly drawn from the evidence before the Court from the previous two days of hearing. That, however, rather misses the point. The Respondent might have chosen to cross-examine differently, more or less, or with different emphasis, if the claim had then included an indirect discrimination claim, and likewise, if the claim had then included a negligence claim. To proceed now, without giving the Respondent an opportunity to cross-examine would be an insuperable prejudice and to recall the witnesses to allow further cross-examination would entail the prejudice previously outlined.
With respect to the negligence issues they entail an entirely different claim and an entirely different set of issues, and further evidence would, the Court suspects, have to be led from the Applicant in relation to that and be responded to by the Respondent. That assumes, of course, that the Court can deal with a negligence claim at common law in respect of the Applicant. The Court does no more than note that there are limitations imposed, subject to section 45 of the Safety, Rehabilitation and Compensation Act, 1988 (Cth), by section 44 of that Act on an employee with respect to a claim in respect of an injury sustained by an employee, in the course of his or her employment. That is a preliminary issue which would have to be dealt with if the application to amend the points of claim or substituted points of claim were to be granted. It also exposes, with respect, how little proper consideration has been given to the proposed substituted points of claim.
Not least in terms of prejudice is a consideration of prejudice to the Applicant herself. She has already been subject to a prolonged and probing cross-examination. Her manifest distress during cross-examination caused it to be adjourned at least twice to the Court’s recollection, and possibly more times than that, and ultimately the Applicant was not able to commence being re-examined toward the end of the second day, because of the distress that she was in. Even though there will have been a considerable break by the time these proceedings recommence on 21 April 2008, the Court suspects that even then further cross-examination of the Applicant would be traumatic for her and there may be a repeat of the distressing scenes seen in Court during her last day of cross-examination. The Court is not persuaded that that is in the Applicant’s best interests.
The Court further notes the inconvenience caused to the Respondent’s witnesses who Counsel for the Respondent advises were ready to give evidence on the last occasion, but who will now have to be got up for a further hearing in April and if further procedural orders have to be made further changes might have to be made with respect to their arrangements. That is a factor to which the Court gives consideration in its ultimate conclusion, but it is a factor of inconvenience rather than significant prejudice.
The Court returns now to the strike out of the indirect discrimination claim by consent on the first day of the hearing. It was not done unadvisedly. The Applicant had the benefit of such assistance as her Counsel could render. There was then an adjournment of 31 minutes to discuss the matter. The possibility of seeking leave to amend the statement of claim by further particularising and seeking an adjournment of the hearing so as not to disadvantage the Respondent, was adverted to and the relevant portion of transcript appears earlier in these reasons for judgment. There was, however, no application to adjourn, but rather a considered consent to strike out the indirect discrimination claim.
There is no evidence now before this Court as to why that considered decision, made with the assistance of Counsel, ought to be undone. There is, in any event, no evidence on affidavit or otherwise tendered in support of the application which the Court has waived the relevant rules to allow to be made, orally, to file a substituted statement of claim or amended points of claim. There is no explanation of the change in direction from the consent to strike out the indirect discrimination allegations seven weeks ago to seeking their re-inclusion. There is no explanation of the delay in filing the substituted statement of claim.
If indeed the new indirect discrimination claim is based on the evidence in the hearing, notice at the very least of an intention to amend the claim or file a substituted statement of claim, re-including the indirect discrimination claim, ought to have been given; likewise with respect to negligence, the fact that no notice or very late notice, if indeed it was given at all to the Respondent, is clearly a significant prejudice to the Respondent. It is the case that the indirect discrimination claim and the negligence claim would require further evidence: as to what further evidence, and the reasons for seeking to amend the points of claim, are simply not matters on which the Court is assisted by evidence in this case.
The mode of operation of this Court has been described as follows:
Reading together the objects of the Federal Magistrates Act in section 3, the mode of operation in section 42 and having regard to the objects of the Federal Magistrates Court Rules in rule 1.03, it is apparent that the court is intended to operate in a manner: (a) as informal as possible in the exercise of judicial power; (b) which is not protracted in its proceedings; (c) which resolves proceedings justly, efficiently and economically; (d) uses streamlined procedures and; (e) avoids undue delay, expense and technicality.[17]
[17] Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para 21 per Lucev FM.
Informality is not an excuse for failure to deal with matters in the normal or proper way and even in circumstances where the Court has waived the relevant rules to allow an oral application to be made it is still the case that the application is unsupported by any relevant evidence. It is also the case that to grant the application would protract the proceedings. It would also, for reasons that the Court has outlined, be inefficient, unjust and uneconomical in terms of the proceedings, the use of the Court’s time, and costs, which would undoubtedly be incurred by the Respondent in dealing with the proposed amendments.
The case, already being significantly part-heard, would not be amenable to streamlined procedures in the circumstances and it would involve, in the Court’s view, undue expense and further delay if the application were to be granted. In short to grant leave to proceed with the substituted statement of claim at this stage would, in the Court’s view, be contrary to the objects of the Federal Magistrates Act 1999 (Cth) and the FMC Rules. It is also the case, in the Court’s view, that this is not, at this stage, a prejudice which can properly and appropriately be cured by an award of costs.
In the circumstances the Court proposes to make orders, waiving the relevant provisions of the FMC Rules, to allow the oral application made today to file a substituted points of claim to be made in terms of the document filed in the Registry on 5 February 2007. The Court, however, will order that that application be dismissed. The Court will also order that the Applicant file by 4:00pm, on 29 February 2007, a final amended points of claim, properly particularised and amended to reflect:
a)the Court’s orders made on 13 December 2007; and
b)the strike out, by consent, of the Applicant’s claim of indirect discrimination.
There will be orders in those terms.
In the circumstances, and given the Court’s view expressed in transcript on 14 December 2007,[18] it is the Court’s view that properly dealt with this matter ought to have been disposed of prior to the directions hearing on 31 January 2008 and that in those circumstances the directions hearing on 31 January 2008, ought not to have been necessary. Even if it was necessary, it is the case that at that stage there was no proper application, no evidence on affidavit to support the substituted statement of claim which was then sought to simply be handed up to the Court.
[18] Transcript at 169.
In the circumstances, and as ought to be evident from the reasons for judgment that have just been delivered, it is appropriate that the applicant pay the respondent’s costs, not only of today, but also of 31 January 2008. So the costs order will be that the Applicant pay the Respondent’s costs of the directions hearing on 31 January 2008 and of today, if not agreed then adjourned to 21 April 2008, with respect to quantum.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Sarah James
Date: 27 February 2008
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