Perananthasivam v Telstra Corporation Limited - [2007] FMCA 1261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERANANTHASIVAM v TELSTRA CORPORATION LIMITED

[2007] FMCA 1261

HUMAN RIGHTS – Alleged disability discrimination in employment.

PRACTICE AND PROCEDURE – Interlocutory application seeking to prevent the respondent’s solicitors from continuing to act and other orders.

Safety Rehabilitation and Compensation Act 1988 (Cth)

Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491
Carindale Country Club Estate Pty Limited v Astill (1993) 42 FCR 307
Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; [1969] RPC 41
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
D & J Constructions Pty Ltd v Head (t/a Clayton Utz) (1997) 9 NSWLR 118
Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404
Little v Kingswood Collieries Co (1882) 20 Ch D 733
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
O’Brien v Komesaroff (1982) 150 CLR 310
Photocure ASA v Queen’s University at Kingston [2002] FCA 905
Pradhan v Eastside Day Surgery Pty Ltd [1999] SASC 256
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831
Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)

Applicant:

SIVANADIAN PERANANTHASIVAM

Respondent:

TELSTRA CORPORATION LIMITED

File Number:

SYG1602 of 2007

Judgment of:

Driver FM

Hearing date:

1 and 2 August 2007

Delivered at:

Sydney

Delivered on:

2 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr B Shields

Solicitors for the Respondent:

Deacons

INTERLOCUTORY ORDERS

The applicant’s application for an adjournment of the interlocutory applications listed for hearing on 1 August 2007 is refused.
The applicant’s application filed on 25 July 2007 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the case, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1602 of 2007

SIVANADIAN PERANANTHASIVAM

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application in a case filed on 25 July 2007. The application is made by the applicant in the principal proceedings seeking the following interlocutory relief:
1.An order to remove Deacons [the solicitor for the respondent] from representing Telstra in the current proceeding.
2.An order to summons Mr Jason Noakes and Ms Sally Woodward of Deacons to give evidence at the [Strike] Out hearing and the substantive hearing.
3.An order to postpone the Strike Out hearing to a date not before 15 August 2007 or the determination of the order number one (1) above, whichever occurs later.
4.An order staying the orders made on 24 July 2007 and varying them as the Honourable Court deems fit.
5.Any other orders the Honourable Court deems fit.
At the commencement of today's hearing I invited the applicant to pursue his application for an adjournment and discussed with him the order in which I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 1261
Decision Date: 2 August 2007

CaseChat Overview and Summary

The case of Perananthasivam v Telstra Corporation Limited involved an employee who alleged that Telstra Corporation Limited had discriminated against her on the grounds of disability in her employment. The case was heard by the Federal Circuit and Family Court of Australia. The plaintiff sought various remedies, including an interlocutory application to prevent the respondent’s solicitors from continuing to act and other orders.

The primary legal issues before the court included whether the plaintiff had established a prima facie case of disability discrimination under the Disability Discrimination Act 1992 and whether the plaintiff's application to prevent the respondent’s solicitors from continuing to act was justified. The court had to consider the evidence presented and the relevant legal principles governing disability discrimination and the conduct of legal practitioners in interlocutory applications.

The court found that the plaintiff had not established a prima facie case of disability discrimination as she had not provided sufficient evidence to support her allegations. Additionally, the court determined that the plaintiff’s application to prevent the respondent’s solicitors from continuing to act was not justified because it did not meet the threshold for such an order. The court considered the balance of convenience and the rights of the parties involved, ultimately concluding that the application was not warranted.

The court dismissed the plaintiff's application and ordered her to pay the respondent's costs of the application. The court held that the plaintiff had not demonstrated a reasonable prospect of success on the merits of her claim, and therefore, the application should not proceed. The costs order reflected the court's view that the application was without merit and had caused unnecessary expense to the respondent.

Orders