Penhall-Jones v State of New South Wales - [2008] FMCA 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENHALL-JONES v STATE OF NEW SOUTH WALES

[2008] FMCA 423

PRACTICE & PROCEDURE – HUMAN RIGHTS – Amendment – application to amend points of claim by adding new claim on day 6 of hearing.

Disability Discrimination Act 1992
HREOC Act 1986

Queensland v J L Holdings Pty Ltd [1997] HCA 1

Applicant:

MARGARET LEILA PENHALL-JONES

Respondent:

STATE OF NEW SOUTH WALES (MINISTRY OF TRANSPORT)

File Number:

SYG 1233 of 2007

Judgment of:

Raphael FM

Hearing date:

31 March 2008

Date of Last Submission:

31 March 2008

Delivered at:

Sydney

Delivered on:

31 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms P Gormly

Solicitor for the Applicant:

Oliveri Lawyers

Counsel for the Respondent:

Mr I Neil SC

Ms V McWilliam

Solicitors for the Respondent:

Home Wilkinson Lowry

ORDERS

Application declined.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1233 of 2007

MARGARET LEILA PENHALL-JONES

Applicant

And

STATE OF NEW SOUTH WALES (MINISTRY OF TRANSPORT)

Respondent

REASONS FOR JUDGMENT

On the sixth day of hearing of this complex set of proceedings, which encompasses two substantive claims, one relating to alleged acts of disability discrimination and the other to alleged acts of victimisation contrary to the Disability Discrimination Act 1992, a Mr Lucarini was giving evidence. Mr Lucarini is a particularly important witness in both of the proceedings. He appears to have been at all relevant times the senior human resources officer in the Ministry of Transport in which the applicant worked.
Insofar as the discrimination proceedings are concerned he took part in an interview for a position, which the applicant applied for and which she did not get, and it is suggested that she did not get it because she was discriminated against on the grounds of her disability and it was because of her disability that the decision was made not to employ her.
In relation to the victimisation claim, Mr Lucarini was being asked questions about a document which appears as an annexure to an affidavit sworn by a Mr Robert Chivers on 3 December 2007 which the applicant is reading in her case even though the affidavit by Mr Chivers was filed by the respondents.
It is fair to say that this letter is not new to what can generously be called "the claim". It is referred to in the decision of the Human Rights and Equal Opportunity Commission letter of 21 March 2007 which was annexed to the application made in this court as required by the HREOC Act 1986. The reference to it is in the following form:
“In relation to the complaint against Mr Lucarini, the respondents note that Mr Lucarini is the Manager Administration Services in the Ministry. They state that as part of the duties of this position he is responsible for employee relations matters and as a part of that role he wrote to the rehabilitation provider, Allianz Australia Insurance Limited on 31 October 2006. This letter addressed the recommendation made by Mr Mark McKie, the rehabilitation person, in his report of 6 November 2006 that you undertake a return to work program elsewhere in the public service outside the Ministry. The respondents have provided a copy of Mr Lucarini's letter. They state that the letter does not state or infer that the reason the return to work has not been implemented is the discrimination proceedings. Rather the letter states that unless and until the Federal Court allows your appeal, the decision and findings of Driver FM bind the parties…”
Mr Neil objected to questions about this letter because it was not referred to as an act constituting victimisation in the points of claim which I ordered be filed and were filed on 21 February 2008. Insofar as Mr Lucarini is concerned the points of claim say this:
“(7) The Applicant was victimised by the Respondent through its employee Reno Lucarini in 2005 causing her detriment on the grounds that the Applicant had discrimination proceedings SYG185/2005” [further particulars provided].
It is clear that a reference to something which happened in 2005 cannot be a reference to a letter written in 2006. In the course of upholding the objection made by Mr Neil to the questioning I informed Ms Gormly, who appears on behalf of the applicant, that it seemed to me the only way she could get this evidence in if she wished to was to seek an amendment to her Points of Claim. She has now produced a draft Amended Points of Claim in which she seeks to add to paragraph 7 a reference to the 2006 letter and to the proceedings which Mr Lucarini was referring to in that letter. She has also provided some additional particulars although these really only amount to adding the words "victimisation matters" in three places.
The respondents object to the amendment at this stage. They point out that there has been no evidence in chief put on by the applicant in relation to this part of the claim. They say that the outline of case provided by the applicant's counsel does not refer to the claim, or more particularly to the letter, and finally that the Points of Claim as they were drafted prior to the proposed amendments did not refer to the letter and the claim arising out of it.
The respondents note that at paragraph 11 of the application, which was the first document filed by the applicant on 17 April 2007, the victimisation complained of against Mr Lucarini is in the following form:
“Reno Lucarini, manager administration in the respondent, has refused to implement the return to work program as required under workers' compensation law and advised that no suitable duties will be offered until my discrimination case is settled.”
Whilst I am not entirely clear what the allegation is regarding 2005 I am clear that it does not appear to involve the letter written in 2006.
Mr Neil says that in the careful preparation of this case which his clients and himself have carried out attention was paid to the claims that were made and articulated in the pleadings. This included the original application and I am reminded that, as part of an arrangement by which the case was adjourned from its original hearing, date a Points of Claim was filed in the victimisation proceedings. The evidence that was put on by the respondents was based upon an answer to this Points of Claim. It was not based upon an answer to a claim that had not been articulated prior thereto in any court document even though it appeared in the HREOC letter.
On preparing a case for trial as a defendant one naturally has regard to what is being said against you. You make decisions such as which witnesses to call and what evidence to adduce from them based upon the claims that are made. If a completely new factual situation arises then all previous decisions that you have made may be prejudiced. Mr Neil claims that he has been hoist on the petard of his own making by filing Mr Chivers' affidavit which contained the letter which he may well not have done if he had known that the letter itself was to be labelled as the casus belli of the action.
He says that if I allow this amendment he will need an adjournment, that he will have to reconsider the evidence that has already been called and the possible need to cross-examine Mr Chivers previously thought to be one of his own witnesses. He says that to ask this to be done after the sixth day of hearing offends against the interests of justice which require that cases really should be ready for hearing when they start and that a respondent should know from the outset the case it is required to meet.
Ms Gormly tells me that the omission of the reference to the letter was inadvertent and that at all times it has been intended to claim that it grounded the victimisation that her client complains of. She goes further and says that it is the major part of her client's claim. She says that no prejudice will be suffered by the defendant if the amendments are allowed and that no further evidence will be called or put on in support of it. She holds the court in terrorem of yet another claim being made by Ms Penhall-Jones if this one is not allowed.
I am of course sensible of the strictures of the High Court in Queensland v J L Holdings Pty Ltd [1997] HCA 1 that amendments should be permitted where the prejudice to the respondent can be soothed by orders for costs. I have not been addressed as to costs but the J L Holdings view depends, of course, upon there otherwise being no substantial prejudice.
I understand the applicant's wish to have her claim heard in full but I am not minded to allow this amendment. I do not think that it is appropriate that an amendment which does not just seek to add some emphasis previously not provided to an otherwise existing claim, or introduce a new point of law, or founding a claim based on facts already known should be permitted almost at the end of hearing and days after the applicant has closed her case. What we have here is an entirely new allegation. It is new to the case that the respondent has known about since the proceedings were commenced and I accept what Mr Neil says about it requiring him to have to reconsider the whole of the case that has been put on, at least insofar as the victimisation claim is concerned.
His witness is in cross-examination. Mr Neil has not had an opportunity to consider whether or not he would put on any evidence in relation to this allegation. He may never have been called, at least he may never have been called in the victimisation claim. And if he was not called he could not have been cross-examined. And yet here he is being pressed upon points which are not raised in the original pleadings.
It seems to me that the prejudice is just too great and it is not appropriate in a case of this nature that such an application be permitted. The applicant has had every opportunity to articulate the case which she wishes to bring and if she has not done so for whatever reason then she must live with the decisions that have been made.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: