Morton v Commonwealth Scientific and Industrial Research Organisation
[2018] FCA 294
•20 February 2018
FEDERAL COURT OF AUSTRALIA
Morton v Commonwealth Scientific and Industrial Research Organisation [2018] FCA 294
File number: QUD 234 of 2017 Judge: RANGIAH J Date of judgment: 20 February 2018 Catchwords: PRACTICE AND PROCEDURE – whether applicant should be granted leave to amend the statement of claim – whether prejudice to respondent is substantial enough to refuse application for amendment – where there has been delay by applicant – amendment allowed on terms as to costs Legislation: Fair Work Act2009 (Cth) ss 340, 351 and 570 Date of hearing: 20 February 2018 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: Ms L Willson Solicitor for the Applicant: Parker Simmonds Solicitor for the Respondent: Ms E Harvey of King and Wood Mallesons ORDERS
QUD 234 of 2017 BETWEEN: KATHERINE MARILLA MORTON
Applicant
AND: COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
20 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The applicant has leave to amend the statement of claim.
2.The applicant pay the respondent’s costs of the application for leave to amend the statement of claim.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The applicant has commenced proceedings alleging contraventions of s 340(1) of the Fair Work Act2009 (Cth) (FWA) on the basis that the respondent took adverse action against her because she exercised workplace rights.
The applicant now seeks leave to amend the statement of claim. The proposed amendments include adding a new claim that the respondent contravened s 351 of the FWA by taking adverse action against her because of her sex or sexual orientation. The new claim involves allegations of sex discrimination and sexual harassment.
The respondent opposes the amendments insofar as they seek to include allegations of contraventions of s 351 of the FWA. It also opposes an amendment which purports to provide particulars of an allegation that the respondent interfered in an investigation into a workers’ compensation claim made by the applicant.
The allegations of sex discrimination and sexual harassment concern events in 2012. The present proceeding was commenced by filing a claim in the Fair Work Commission on 1 December 2016.
An amended claim was filed on 29 March 2017, which did not raise the allegations now sought to be raised. The only explanation provided by the applicant’s lawyers for the delay is that the applicant had not previously disclosed these allegations to the lawyers. The applicant has not provided an adequate explanation for her delay in seeking the amendments to the statement of claim.
The respondent alleges that it will be significantly prejudiced if the amendments are allowed. It submits that the case will be transformed, and that the amendments raise, for the first time, allegations against two individuals. While the statement of claim in its current form alleges that the applicant had previously complained to the respondent about sexual assault, harassment and bullying by a third individual, the respondent says that those allegations were not raised in a context where the truth of the allegations fell to be decided in the case.
The respondent submits that the case will be transformed because the truth of the allegations will now have to be dealt with. The respondent also says that the amendments are sought at too a late stage of the proceeding.
I accept that there will be some prejudice to the respondent if the amendments are allowed at this stage, but do not accept that the prejudice is substantial enough to refuse the application for amendment.
Firstly, the applicant is within the limitation period to bring separate proceedings for contraventions of s 351 of the FWA and has provided her lawyers with instructions to do so if the amendments are not permitted. There would then be an application for consolidation of the proceedings or a joint trial. The respondents will have to face the allegations, whether in this proceeding or another.
Secondly, while the allegations against the two individuals are new, those against the third are referred to in the current version of the statement of claim which, in my opinion, does raise for determination the truth of the allegations. Further, the other tranche of amendments merely operates to provide particulars of the allegation that the respondent interfered in an investigation concerning the applicant’s workers’ compensation claim. Therefore, the new allegations arise, at least in substantial part, from the same factual matrix that is already pleaded.
Thirdly, the application is not brought at a fatally late stage. While pleadings have closed, directions have not yet been made as to the filing of affidavits, and the matter has not yet been set down for trial.
Fourthly, this is a case where some of the prejudice to the respondent can be ameliorated by an order for costs. The respondent submits that the conduct of the applicant in bringing the application for amendment this late was unreasonable and has caused it to incur the costs such as to enliven the power of the court under s 570(1) of the FWA. I agree that the explanation for the delay is unsatisfactory. The applicant should be ordered to pay the respondent’s costs of the application for leave to amend the statement of claim, including the costs of preparation and the costs of today’s hearing.
I propose to make an order that the applicant have leave to amend the statement of claim.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 12 March 2018
0
0
1