Painter v Commonwealth of Australia
[2011] FMCA 797
•4 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAINTER v COMMONWEALTH OF AUSTRALIA | [2011] FMCA 797 |
| PRACTICE & PROCEDURE – Leave to file statement of claim. |
| Applicant: | LYNDELL BARBARA PAINTER |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 2052 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the Respondent: | Ms K. Eastman |
| Solicitors for the Respondent: | Maddocks |
ORDERS
The applicant have leave to file a statement of claim in the terms of the document attached to the affidavit of Claresta Jun Lei Seto of
30 September 2011 within seven (7) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2052 of 2010
| LYNDELL BARBARA PAINTER |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by an application filed on 17 September 2010. It was the applicant’s allegation that the respondent had breached a contract of employment which existed between them. What is currently before me for determination is whether the document annexed to the affidavit of Claresta Jun Lei Seto of 30 September 2011 entitled “Amended Statement of Claim” should be filed in circumstances where the first part of the document addresses allegations against the respondent of direct discrimination and the latter part of the document attempts to articulate her breach of contract claim.
It has been reasonably pointed out by the respondent’s counsel, Ms Eastman, that this is – she described it as the fifth iteration – I cannot be sure but I will accept that – of the pleading and it is time for the pleading to be concluded in its final form given that the matter is listed for hearing at the end of this year. The allegations of breach of contract raise novel and difficult matters and also in some respects it appears matters which are of questionable relevance and questionable propriety in pleading terms, by which I mean that I had doubts whether or not such matters are properly included in a pleading rather than in an affidavit.
The respondent has made a concerted attack on the pleading and has raised many strong arguments as to why it should not be allowed. However, the complexity of the arguments and the novelty of some of them indicate to me that I should not make a decision on those issues at an interlocutory stage. I am not satisfied that the applicant has no reasonable prospects of success in making out the allegations which appear in the latter part of the document entitled Amended Statement of Claim. It may be, at the end of the day, that they will not be made out but this is not the time to make that decision. Therefore the applicant will be granted leave to file a statement of claim in terms of the document attached to the affidavit of Claresta Jun Lei Seto.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 19 October 2011
0
0
0