Martin v Telstra Corporation Ltd

[2022] FedCFamC2G 530

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Martin v Telstra Corporation Ltd [2022] FedCFamC2G 530

File number(s):

SYG 339 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

30 June 2022

Catchwords:

INDUSTRIAL LAW – Practice and procedure – application for leave to amend statement of claim – whether it would be futile to allow amendment of a proposed cause of action because it would be futile to do so – whether other amendments necessary to ensure the real questions in controversy between the parties are decided – application dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(d)

Fair Work Act 2009 (Cth) ss 50, 323

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01(1)

Cases cited:

Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 74 SASR 240

Bridges v Norling trading as Itravel Forster [2016] FCCA 212

Elder’s Trustee & Executor Co. Ltd. v Commonwealth Homes & Investment Co. Ltd (1941) 65 CLR 603

Immer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26

Kalayzich v Santa Sabina College & Anor [2020] FCCA 11

Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536

Peter Turnbull & Company Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235

Sargent v ASL Developments Ltd (1974) 131 CLR 634

Turner v the Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd [1984] FCA 275

Visscher v Giuuidice (2009) 239 CLR 361

Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311

Division:

Fair Work

Number of paragraphs:

42

Date of hearing:

16 June 2022

Place:

Sydney

Solicitor for the Applicant:

Mr C Mossman of Wotton + Kearney

Counsel for the Respondent:

Mr K Brotherson

Solicitor for the Respondent:

Hall & Wilcox

ORDERS

SYG 339 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

VALERIE MARTIN

Applicant

AND:

TELSTRA CORPORATION LIMITED ABN 33 051 775 556

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	30 JUNE 2022

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed on 15 February 2022 seeking leave to amend her statement of claim is dismissed.

2.The costs of the application are reserved.

3.The proceeding is listed for a directions hearing at 2:00 pm on 13 July 2022.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for leave to file a third further amended statement of claim in the form of the draft annexed to the affidavit of the applicant’s lawyer, Mr Mossman, made on 11 February 2022 (FASC). The respondent opposes the application.

2. Before I describe the proposed amendments contained in the FASC, and the grounds on which the respondent opposes the application, it will be necessary to describe the causes of action the applicant pleads in the current statement of claim, being the second further amended statement of claim filed on 16 February 2021 (Current SOC).

   CURRENT SOC

   Alleged facts

3. The applicant commenced her employment with the respondent in about 1989. In 2000 the applicant accepted the respondent’s offer that she be employed full time in the position of “call centre emergency Customer Service Operator”. The applicant’s duties included answering 000 calls and recording details of an emergency while speaking with potentially highly emotive callers, and transferring calls to the relevant emergency services (E000 work).

4. The applicant’s employment with the respondent was covered by the “Telstra Enterprise Agreement 2015-2018” (EA). The applicant’s base salary was $62,930.40 plus superannuation; but the applicant was also entitled to be paid shift loadings, weekend penalty rates, and public holiday penalty rates.

5. E000 work was governed by the terms of the “Hearing Assessment Guidelines for the E000 work” (E000 Guidelines). They required that candidates for E000 work “should have hearing of 25dB HTL or better in at least one ear at all frequencies between 500 and 4KHz” (Required Hearing Standard). The E000 Guidelines provided that if hearing levels exceed 25dB HTL in both ears “then further audiological testing [would be] required to verify the initial results and, based on additional bone conduction and speech discrimination tests”, a determination would be made “if the applicant or employee will be able to carry out the inherent requirements of E100 [sic] work”.

6. In a section headed “Speech discrimination tests”, a section that appears to have been directed to persons who undertake speech discrimination tests, the E000 Guidelines required that:

   Phonetically balanced word test (AB) should be administered and you are required to comment on the extent to which the person is capable of discriminating speech at 70dB SPL in both quiet and with a single to noise ratio of +10dB. A score of 90% or better is considered acceptable.

7. In a section headed “Recommendations”, a section that also appears to have been directed to persons who undertake speech discrimination tests, the E000 Guidelines required as follows:

   Please indicate in your report whether, in your professional opinion, the candidate will or will not be able to carry out the inherent requirements of headset work. Please also indicate if there are any reasonable and practical adjustments to the workplace that would enable the inherent requirements of the job to be performed without difficulty eg. alternative headset type. Please record in detail.

8. The applicant has a mild to moderate level of high frequency sensorineural hearing loss.

9. As required by the respondent, the applicant underwent hearings tests conducted by an audiologist in 2012, 2016, and 2019. The applicant has not met the Required Hearing Standard since 2012. The respondent, however, permitted the applicant to work using a binaural headset, instead of a monaural headset.

10. On 23 March 2019 and 21 June 2019 the respondent issued written warnings to the applicant alleging she had mishandled calls; and from 21 June 2019 the respondent subjected the applicant to performance management pursuant to a “Performance Support Plan”. The respondent, however, did not have any reasonable basis to issue the warnings, or to subject the applicant to any performance management.

11. On 4 November 2019 the applicant, at the request of the respondent, participated in an assessment by an audiologist. At the assessment the audiologist stated to the applicant that there had been no change in the applicant’s hearing since 2016, and she was able to perform to the requirements of the E000 Guidelines, provided she continued to use the binaural headset. Further, in a report the audiologist issued, the audiologist stated:

    Pure tone audiometry residual mild to moderate sensorineural hearing loss for both ears.

    Speech test results show good speech discrimination ability for both ears at appropriate amplification level.

    The test results were discussed with the client. Monitoring hearing level or have regular check (every 3-5 years is suggested).

12. On 7 November 2019 the applicant’s supervisor, Ms Barnett, informed the applicant she had not passed the hearing test, she was required to go home, and she would be required to take sick leave from 8 November 2019. In “furtherance of” Ms Barnett’s instruction, “the Respondent removed the Applicant from work and she was unilaterally placed on sick leave commencing from 8 November 2019”.

13. On 10 November 2019 Ms Barnett wrote to the applicant with words to the effect that she had taken the action on 7 November 2019 because of the applicant’s “medical condition”. The applicant responded on 10 November 2019 stating that she did not accept she was medically unfit to perform the requirements of her role; the respondent’s audiologist had told the applicant that she was able to continue in her role; Ms Barnett’s direction that the applicant take sick leave was unlawful; and the respondent was required to pay the applicant in full without any deduction for sick leave. On 13 November 2019 Ms Barnett confirmed to the applicant that the respondent would not deduct any leave from the applicant’s sick leave entitlements, but the applicant was put on paid “discretionary leave”, which was set at the applicant’s “base rate”, with a direction that she not present for work.

14. On 25 November 2019 Ms Barnett informed the applicant by email that the discretionary paid leave would continue until 8 December 2019, but after that date the respondent would direct the applicant to use her personal sick leave entitlements. Ms Barnett attached a copy of a report from a Dr Milecki dated 21 November 2019, and she required the applicant to sign a consent form to allow Dr Milecki to speak to the applicant’s general practitioner. On 11 December 2019 Ms Barnett sent to the applicant another email in which she repeated that the applicant would be treated as being on personal sick leave from 8 December 2019, and her entitlements to personal leave will be deducted as a result, and the applicant was required to sign the consent form to allow Dr Milecki to speak to the applicant’s general practitioner.

15. The applicant refused to sign the consent form because Dr Milecki is not an audiologist; the applicant had never met Dr Milecki, and Dr Milecki had never consulted the applicant, or tested or assessed her hearing; and the applicant’s general practitioner is not an audiologist and the applicant had not consulted her general practitioner about her hearing loss. On 2 January 2020 the applicant provided to the respondent a report from Dr Pallett, an audiologist, in which Dr Pallet confirmed the applicant did meet the requirements of the E000 Guidelines.

16. On 14 February 2020 the respondent discontinued paying the applicant any remuneration; and from 14 February 2020 to 15 June 2020 (absence period) the applicant “remained precluded from the workplace and removed from normal duties at the direction of the Respondent”. On 26 June 2020, however, the respondent paid to the applicant an amount equivalent to her base salary for the period 14 February 2020 and 12 June 2020.

    Claims

17. On the basis of these alleged facts the applicant makes the following claims.

    (a)By requiring the applicant to take personal leave the respondent breached cl 32 of the EA and, for that reason, contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act).

    (b)By paying the applicant on 26 June 2020 no more than her base salary for the absence period, the respondent paid the applicant an amount that was less than the amount the applicant was entitled to be paid under cl 17.1 of the EA and, for that reason, the respondent breached cl 17.1 of the EA and, therefore, contravened s 50 of the FW Act.

    (c)By failing during the absence period to pay to the applicant her remuneration in full and at least monthly, the respondent contravened s 323 of the FW Act.

    (d)By removing the applicant from her place of work, unilaterally placing the applicant on sick leave commencing on 8 November 2019, and not paying the applicant the remuneration to which she was entitled, the respondent breached implied terms of the applicant’s employment contract with the respondent that the respondent would co-operate with the applicant, that it would act in good faith in relation to the applicant, and that the respondent could only issue lawful and reasonable directions.

    (e)By removing the applicant from her place of work, unilaterally placing the applicant on sick leave commencing on 8 November 2019, and not paying the applicant the remuneration to which she was entitled, the respondent treated the applicant less favourably on the basis of her disability than it would have treated a person without the applicant’s disability in circumstances that were not materially different; and, for that reason, the respondent “contravened” s 5(1) and s 15(2)(d) of the Disability Discrimination Act 1992 (Cth) (DD Act).

    THE PROPOSED AMENDMENTS

18. The applicant has grouped the proposed amendments into the following categories:[1]

    [1] Applicant’s Submissions in Support of the Applicant’s Application in a Case filed on 15 February 2022 [6]-[13]

    (a)Paragraphs 1, 2, 5, and 9 of the FASC relate to grammatical tense, and seeks to confirm that the applicant alleges her employment ceased with the respondent when she resigned on 10 May 2021.

    (b)Paragraph 27, which amends the date from 10 November 2019 to 11 November 2019.

    (c)Paragraph 51, which replaces “at least monthly” with “fortnightly”.

    (d)Paragraphs 37-41 and 49. The applicant submits these paragraphs plead the material facts to support the allegation in paragraph 37 of the Current SOC that the applicant “is and at all material times [was] able to perform the inherent requirements of the role”. These paragraphs allege as follows:

    (i)at the respondent’s direction, on 13 May 2020 the applicant attended an independent medical assessment conducted by Professor Fagan;

    (ii)on 1 June 2020 the respondent provided the applicant with a report prepared by Professor Fagan dated 13 May 2020 in which he concluded the applicant was fit to return to work; the applicant’s hearing was stable without treatment; Professor Fagan disagreed with comments Dr Milecki made that other medical issues may be related to the alleged issues the applicant was having at work; it was unnecessary to contact the applicant’s usual medical practitioners; the applicant was fit to undertake her usual tasks without restriction or modifications; and there was no jeopardy to the safety of the applicant and others;

    (iii)in a further report dated 9 June 2020 Professor Fagan confirmed that the only assistance the applicant required to allow the applicant to perform her duties was the continuing use of the binaural headset;

    (iv)given these matters, the applicant was at all material times able to perform the inherent requirements of the role with the use of the binaural headset; she was not at any time sick or injured within the meaning of cl 32 of the EA, and she was “at all material times ready, willing and able to perform her role”.

    (e)Paragraph 57 contains particulars to the allegation made in paragraph 53 of the Current SOC that the respondent’s conduct alleged in paragraphs 25, 28, 30, 31, and 35 of the Current SOC were unlawful and unreasonable.

    (f)Paragraph 59 alleges as follows:

    Further or in the alternative, by its conduct pleaded in paragraph 57 hereof the Respondent repudiated the employment contract between the parties. The Applicant accepted the said repudiation by resigning from her employment on 10 May 2021.

    (g)Paragraph 61 adds after the words “on the basis of her disability” in paragraph 56 of the Current SOC the words “and/or the manifestations of that disability”.

    (h)Paragraph 67 alleges that, because of the respondent’s conduct alleged in paragraphs 34, 35, 36, 47 and 49, the applicant suffered loss in that the respondent had only paid the applicant her base rate of pay, and not her full rate of pay, which would have included payment for shift loadings, and weekend and public holiday penalties.

    (i)Paragraph 68 alleges that because of the respondent’s repudiation of the employment contract, as alleged in paragraph 59 of the FASC, the applicant suffered loss of wages from 10 May 2021 for a period of three years when the applicant intended to retire at the age of 75 years.

    (j)Paragraph 69 alleges that by contravening the DD Act the respondent caused the applicant to suffer a psychological injury which prevented her from performing work since 15 June 2020, and, for that reason, “forced the Applicant to resign on 1 [sic] May 2021”.

    PRINCIPLES

19. The source of this Court’s power to permit the amendment of documents is r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which provides:

    At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.

20. The principles that govern the exercise of this power in relation to an application to amend pleadings are well-settled, and for present purposes the following statement of the principles is sufficient:[2]

    The principles applicable to applications for leave to amend are well established and include the following:

    (1)the starting point is “that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided”: Oswal v Apache Corporation (No 3) [2014] FCA 835 at [5];

    (2)an amendment will “ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment”: S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1035 (“S.P.I. Spirits”) at [14];

    (3)leave should be granted unless the proposed amendment “is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner” indicated above: S.P.I. Spirits at [17];

    (4)the allowance of an amendment before the commencement of a trial “stands in a very different position from amendment towards the end of a trial”: S.P.I. Spirits at [18]; and

    (5)relevant matters the Court may consider include the nature and importance of the amendment to the party applying for it and the prejudice caused by the amendment: Tamaya at [127].

    [2] Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536, at [55]

    PARTIES’ SUBMISSIONS

21. The applicant submits that leave should be granted because the proposed amendments are limited in that they do not seek to add any new parties; although the proposed amendments seek to raise an additional cause of action, namely, damages for repudiation of the applicant’s employment contract, that cause of action did not accrue until the applicant accepted the alleged repudiation on 10 May 2021 which occurred after the Current SOC was filed; the proposed amendments, if allowed, do not cause any prejudice to the respondent; and many of the amendments seek to add some detail and clarity to matters already pleaded in the Current SOC.

22. The respondent, in its written submissions, opposes the proposed amendments on the following grounds.

    (a)The history of the proceeding, and in particular, the applicant having filed three versions of her statement of claim, and the circumstances in which the applicant, through her lawyers, gave notice of the applicant’s intention to apply for leave to file a further version of her statement of claim. The respondent submits that this history “does not disclose a considered and coherent strategy by the Applicant for the claims she has made and the litigation that she has commenced”, and this “situation continues with the” FASC.[3]

    (b)The FASC “discloses an ill-considered approach by the Applicant, with the [FASC] presenting as rushed and poorly prepared”.[4] Although this Court is “not generally a court of pleadings”,[5] that does not mean “that a statement of claim can be unintelligible”.[6] “Indicative of the state of the” FASC “and its utility, is that having sought to plead repudiation as an alternative cause of action, no specific relief for repudiation is sought”, a matter the applicant in her written submissions acknowledges.[7]

    (c)The proposed amendment alleging repudiation discloses no reasonable cause of action because:[8]

    (i)the alleged repudiatory conduct ended 11 months before the applicant resigned;

    (ii)during that 11 month period the applicant elected to continue to be employed, and confirmed that election by continuing to provide medical certificates in support of her entitlement to on-going leave; and in the FASC the applicant  alleges that she was ready, willing, and able to perform her role; and

    (iii)even if the respondent had engaged in repudiatory conduct, the respondent rectified its default.

    (d)Paragraphs 38-40, 44, 49, and 57 of the FASC do not appear to be reasonably justified on the evidence that has been filed.[9] The respondent refers to paragraph 12 of the applicant’s affidavit made on 29 April 2021 in which the applicant deposes that between 11 June 2020 and 5 March 2021 her general practitioner, Dr Insley, issued medical certificates that certified the applicant had a medical condition, and was unfit to work.[10]

    (e)The FASC is ambiguous, evasive, and contains inconsistent allegations. The respondent refers to paragraph 69 of the FASC alleging that the applicant was prevented from working “since 15 June 2020” whereas in paragraph 61 of the Current SOC the applicant alleges “since on or about 15 June 2020”.[11]

    [3] Respondent’s submissions re Applicant’s Application in a Proceeding [14]

    [4] Respondent’s submissions re Applicant’s Application in a Proceeding [15]

    [5] Kalayzich v Santa Sabina College & Anor [2020] FCCA 11, at [134]

    [6] Respondent’s submissions re Applicant’s Application in a Proceeding [17]

    [7] Respondent’s submissions re Applicant’s Application in a Proceeding [28]

    [8] Respondent’s submissions re Applicant’s Application in a Proceeding [25]

    [9] Respondent’s submissions re Applicant’s Application in a Proceeding [31]. Paragraph 44 of the FASC is not an amendment. It is the same as paragraph 40 of the Current SOC.

    [10] Respondent’s submissions re Applicant’s Application in a Proceeding [30]

    [11] Respondent’s submissions re Applicant’s Application in a Proceeding [30]

    SHOULD LEAVE BE GRANTED?

1. The proposed amendments to the Current SOC are relatively modest in scope. With the exception of the purported cause of action based on repudiation (repudiation cause of action), the proposed amendments purport to add clarity and further detail to the Current SOC; and the repudiation cause of action relies on facts that are pleaded in the Current SOC. That does not necessarily mean, however, that the amendments ought to be allowed; whether the applicant should be permitted to make any one or more of the amendments turns on the determination of the following questions:

   (a)Would it be futile to permit the applicant to amend the Current SOC by adding the repudiation cause of action because, had it formed part of the Current SOC, it would have been liable to be struck out as not disclosing a reasonable cause of action?

   (b)Assuming (a) is answered in the negative, would amending the Current SOC to include the repudiation cause of action cause prejudice to the respondent which cannot be compensated by an order for costs, or would there be some other issue associated with the administration of justice that would weigh against the applicant being granted leave to rely on the repudiation cause of action? If so, ought such prejudice or other reason lead me not to permit the applicant to rely on the repudiation cause of action, having regard to the prejudice the applicant will suffer if I do not grant the amendment?

   (c)Are any one or more of the other proposed amendments necessary to ensure that the real questions in controversy between the parties are decided?

   (d)If (c) is answered in the affirmative, the questions identified in (b) arise in relation to each amendment which is necessary to be allowed to ensure that the real questions in controversy are decided.

   Would it be futile to permit the repudiation cause of action?

2. Before I consider this question, it will be necessary to refer to some principles.

   Principles

3. As with all contracts, subject to any contrary express term, an employer’s repudiation of an employment contract does not put an end to the contract until the employee elects to accept the repudiation.[12] A repudiation of a contract “may be accepted expressly or, more often, by implication from conduct”,[13] but “[t]he words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other”.[14] In the context of a repudiation by an employer, the two sets of rights between which an employee may make an election are the employee’s rights to accept the repudiation or to affirm the employment contract.

   [12] Visscher v Giudice (2009) 239 CLR 361, at [53]-[55] (Heydon, Crennan, Kiefel, and Bell JJ)

   [13] Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 74 SASR 240, at [36] (Bleby J)

   [14] Sargent v ASL Developments Ltd (1974) 131 CLR 634, at page 646 (Stephen J) quoted with approval in Immer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, at pages 38-39 (Deane, Toohey, Gaudron, and McHugh JJ). In this and the following paragraphs I repeat what I said in Bridges v Norling trading as Itravel Forster [2016] FCCA 212, at [67]-[70].

4. For there to be a valid election, there must be “an element of knowledge on the part of the elector and words or conduct sufficient to amount to the making of an election as between the two inconsistent rights which he possesses”.[15] As Stephen J observed in Sargent v ASL Developments Ltd, however, the “nature of the knowledge which an elector must possess is a matter upon which the authorities are somewhat at variance”:[16] These differences have not to this day been resolved. Perhaps the reason is that the question whether a valid election requires knowledge, not only of the facts giving rise to the right to elect, but of the right itself, has been considered in different circumstances which may call for different answers.

   [15] Sargent v ASL Developments Ltd (1974) 131 CLR 634, at page 642

   [16] Sargent v ASL Developments Ltd (1974) 131 CLR 634, at page 642

5. One important distinction, however, is that identified by the High Court in Elder’s Trustee & Executor Co Ltd v Commonwealth Homes & Investment Co. Ltd between “cases where the party’s conduct is unequivocal in its effect and cases where this conduct does not necessarily amount to a waiver but is merely some evidence that he has in fact elected to affirm”.[17] Speaking of an election to affirm an estate or interest, or a contract, the High Court said:

   Where rights are exercised, either in virtue of an estate or interest in property, or by virtue of a contract, which would not exist unless the estate, interest or contract endured or remained in force, it may well be that the party exercising them loses the right to determine the estate or interest on breach of condition or the contract for breach of some term going to the root of it, unless he is able to show not merely that he was unaware of the existence of his right but of the facts amounting to breach of condition or of contract.

   [17] Elder’s Trustee & Executor Co. Ltd. v Commonwealth Homes & Investment Co. Ltd (1941) 65 CLR 603, at page 618 (Rich ACJ, Dixon and McTiernan J)

6. Where, however, there is no conduct that is unequivocal in its effect, the conduct of a person that is claimed to constitute an election would be no more than evidence that might give rise to the inference, “if he knew that he had a right of election, that he had resolved to affirm”.[18]

   [18] Elder’s Trustee & Executor Co. Ltd. v. Commonwealth Homes & Investment Co. Ltd (1941) 65 CLR 603, at page 618 (Rich ACJ, Dixon and McTiernan J)

7. From Elder’s Trustee, a general principle may be formulated. Where the conduct of a person that is alleged to constitute an election is not unequivocal in its effect, the conduct may nevertheless support an inference that the person made the election if the conduct is consistent with the person having resolved to make the election and the person had knowledge that he or she had the right to make the election. Where, on the other hand, the effect of the conduct is unequivocal in its effect, it is not necessary to inquire into whether the person who engaged in the conduct knew he or she had the right to elect.

8. In Whittaker v Unisys Australia Pty Ltd Ross J observed that a “repudiatory breach may be retracted or cured by the party in breach, but only prior to the exercise by the innocent party of the right to terminate the contract”.[19] That is a reference to a party’s evincing an intention not to perform his or her contract in advance of the time for performance, being the circumstances considered by Kitto J in Peter Turnbull & Company Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd:[20]

   The doctrine of anticipatory breach is, of course, applicable as soon as A has communicated to B his refusal to carry out the contract. Under that doctrine B is put to his election. He may, if he chooses, treat the contract as brought to an end in consequence of A's default, and recover damages from A for loss of the benefit of the contract. Alternatively, he may treat the contract as continuing on foot, in which case it will remain in force for the benefit of both parties, just as it would if the refusal had never been declared. If A persists in his refusal, B may at any time while the refusal continues elect to treat the contract as at an end and sue for damages; but unless and until he does so the contract remains on foot, and A may withdraw his refusal and require B to perform the contract on his part, subject only to giving B reasonable notice of his change of intention

   [19] Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311, at [39]

   [20] Peter Turnbull & Company Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235, at page 250

   Determination

9. On the face of the FASC the applicant has a reasonable cause of action that the respondent repudiated the employment contract by having, among other things, in November 2019 directed the applicant not to return to work; and that that repudiatory conduct continued until 10 May 2021. The difficulty, however, is that the FASC ignores the evidence the applicant herself has filed in the proceeding and which appears not to be in issue between the parties. I am here referring to two items of evidence. The first is paragraph 48 of the applicant’s affidavit made on 28 September 2020 in which she deposes as follows (emphasis added):[21]

   Telstra removed the direction to preclude me from work on 15 June 2020. However, I have not returned because I have been on personal leave for reasons unrelated to my hearing loss since 15 June 2020.

   [21] This affidavit was not read at the hearing but after the hearing the parties consented to my having regard to affidavits that had been filed.

10. The “personal leave” to which the applicant may be taken to refer is the right to personal leave provided for by cl 32 of the EA, which relevantly provides:

    32.1     Your entitlement

    a)You get 15 days of paid personal leave each year, which Telstra credits you with at the start of each leave year and which is cumulative . . .

    b)You can use this leave:

    i)if you are sick or injured; or

    . . .

    32.2Taking personal leave

    a)You must provide your manager with medical evidence:

    i)if your personal leave is more than 3 consecutive work days; or

    ii)if you have already taken more than 5 personal leave days during the leave year without providing evidence.

11. The second item of evidence is paragraph 12 of the applicant’s affidavit made on 27 April 2021, in which the applicant says:[22]

    Between 11 June 2020 and 5 March 2021, my General Practitioner Dr Insley issued medical certificates which certified that I had a medical condition and was unfit to work. Now shown to me and marked “VM17” are true and correct copies of those nine medical certificates.

    [22] This affidavit was not read at the hearing but after the hearing the parties consented to my having regard to affidavits that had been filed.

12. Each of the medical certificates states: “This is to certify that Valerie Martin has a medical condition and will be unfit for work from” followed by the days to which the statement is intended to apply.

13. This evidence shows that, as from 15 June 2020, the respondent had ceased the conduct the applicant alleges constituted the respondent’s repudiation of her employment contract, namely, the respondent’s directing that the applicant not return to work. That means that, as from 15 June 2020, the applicant was free to return to work, if she were fit to do so. The applicant did not return to work after 15 June 2020; but that was not because she had terminated the contract, or because she was unwilling to return to work. The applicant did not return to work because she claimed she was unfit for work; and the applicant regularly provided to the respondent medical certificates certifying she was not fit for work. That conduct can only be consistent with the continuation of the applicant’s contract of employment, because the conduct assumes that, but for her being unfit for work, the applicant was willing to perform, and would have performed, her obligations under the contract of employment.

14. It is possible to go further, and characterise the applicant’s regularly submitting medical certificates as the exercise by the applicant of rights that depended “upon the continuance of the employment”.[23] Those rights are the rights to personal leave provided for by cl 32 of the EA which I have already set out. The applicant does not allege the respondent failed to pay to the applicant amounts for personal leave to which the applicant was entitled under the EA for the periods for which the medical certificates certified the applicant was unfit to work. The irresistible inference to be drawn is that the applicant was paid the amounts to which she was entitled to under the EA from 15 June 2020 to 10 May 2021; and the purpose for which the applicant submitted the medical certificates was to exercise the rights she had under cl 32 of the EA to be paid during personal leave.

    [23] Turner v the Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd [1984] FCA 275, at [31]: “In these days, however, there may be many reasons other than the seeking of remuneration why either party may wish to keep a contract of employment alive. . . . From the employee's point of view, there may be entitlements to annual leave or long service leave or superannuation which depend upon the continuance of employment.”

15. By regularly submitting medical certificates that she was unfit to work, there can be no doubt that the applicant affirmed her contract of employment after the respondent informed the applicant that she was free to return to work. That means that it would be futile to permit the applicant to amend the Current SOC by including the repudiation cause of action.

    The other amendments

16. The applicant does not submit that the other amendments are “necessary to ensure the real questions in controversy between the parties are decided”. And there is nothing in the proposed amendments that suggests that it is necessary that they be allowed to ensure that the real questions between the parties are decided. More particularly, the proposed amendments do not raise matters in relation to which the applicant would be unable to give evidence.

17. For these reasons alone, there would be no utility in granting the applicant leave to make the other amendments.

    OTHER MATTERS

18. The applicant sought to read, over the respondent’s objection, an affidavit made by Mr Mossman on 10 June 2022 which, he submitted, answered matters raised in the affidavit of Mr Dearden, the lawyer for the respondent, filed that related to the applicant’s conduct in the proceeding. I reserved my decision on whether I would read the affidavit.

19. I do not propose to read Mr Mossman’s affidavit because it is irrelevant, as is most of the affidavit material the parties filed in relation to the applicant’s application to amend the Current SOC. The questions that arose on the applicant’s application for leave to amend the Current SOC are those I identify in paragraph 23 of these reasons. Their resolution required my considering no more than the Current SOC, the FASC, and the history of the course of this proceeding as revealed by the material on the court file. That is so because the applicant did not provide an affidavit to explain why she needed to amend the Current SOC, and why she had waited almost one year before she applied for to leave to amend; and Mr Dearden, in his affidavit made on 11 February 2021, did not identify any specific prejudice the respondent would suffer if leave were granted beyond the prejudice courts readily assume a party will suffer if leave to amend is granted, namely, the throwing away of costs that have been incurred and potential delay.

    DISPOSITION

20. I propose to dismiss the application to amend the Current SOC, and will reserve the question of costs. I will also list the matter for further directions at 2:00 pm on 13 July 2022.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       30 June 2022