FEDERAL COURT OF AUSTRALIA
Robinson v NSW Police Service [2011] FCA 1081
Citation: Robinson v NSW Police Service [2011] FCA 1081 Parties: DAVID ROBINSON and SONIA EL MASRI v NSW POLICE SERVICE File number(s): NSD 1363 of 2010 Judge: YATES J Date of judgment: 23 September 2011 Catchwords: EVIDENCE – rulings on admissibility of evidence in advance of hearing Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P(2), 46PH(2), 46PO
Disability Discrimination Act 1992 (Cth) ss 5, 6, 24
Evidence Act 1995 (Cth) s 136
Federal Court of Australia Act 1976 (Cth) s 37M(2)
Federal Court Rules 2011 Rule 4.12Cases cited: Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118
Grigor-Scott v Jones (2008) 168 FCR 450
Maghiar v Western Australia [2002] FCA 262
Travers v State of New South Wales [2000] FCA 1565Date of hearing: 15 September 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Applicants: The applicants appeared in person Counsel for the Respondent: Ms K Eastman Solicitor for the Respondent: Henry Davis York
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1363 of 2010
BETWEEN: DAVID ROBINSON
First ApplicantSONIA EL MASRI
Second ApplicantAND: NSW POLICE SERVICE
Respondent
JUDGE:
YATES J
DATE OF ORDER:
23 SEPTEMBER 2011
WHERE MADE:
SYDNEY
THE COURT RULES THAT:
1. The following paragraphs of the following affidavits be rejected:
(a)Affidavit of David Robinson sworn 2 June 2011
(i)Paragraphs 16 to 19;
(ii)Paragraphs 33 to 34;
(iii)Paragraphs 35 to 36;
(iv)Paragraphs 44 to 51;
(v)Paragraph 52 to 68 and 127 to 128;
(vi)Paragraphs 69 to 72;
(vii)Paragraphs 73 to 83 and 124 to 125;
(viii)Paragraphs 84 to 85;
(ix)Paragraphs 86 to 87;
(x)Paragraphs 88 to 89;
(xi)Paragraphs 90 to 94 and 126;
(xii)Paragraphs 95 to 96;
(xiii)Paragraphs 97 to 98;
(xiv)Paragraphs 99 to 100;
(xv)Paragraphs 101 to 102;
(xvi)Paragraphs 103 to 104;
(xvii)Paragraphs 105 to 115;
(xviii)Paragraphs 120 to 123;
(xix)Paragraph 129; and
(xx)Paragraph 131.
(b) Affidavit of Sonia El Masri sworn 4 April 2011
(i)Paragraphs 5 to 7; and
(ii)Paragraphs 10 to 14.
(c) Affidavit of Sonia El Masri sworn 23 May 2011
(i)Whole affidavit.
(d) Affidavits of Sally Neighbour sworn 8 April 2011 and 17 May 2011
(i)Each affidavit.
2.The following paragraphs of the following affidavits be admitted into evidence, subject to the limitation that, in each case, the evidence as given is to stand as a submission and not as evidence of the fact or facts asserted:
(a) Affidavit of David Robinson sworn 2 June 2011
(i)Paragraph 2;
(ii)Paragraph 15;
(iii)Paragraph 20;
(iv)Paragraphs 30 to 32; and
(v)Paragraphs 37 and 39.
(b) Affidavit of Sonia El Masri sworn 4 April 2011
(i)Paragraphs 3 and 4;
(ii)Paragraphs 8 and 9; and
(iii)Paragraph 15.
3.The following paragraphs of the affidavit of David Robinson sworn 2 June 2011 be admitted into evidence, subject to the limitation that the evidence as given be confined to…
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- Case
- [2011] FCA 1081
- Decision Date
CaseChat Overview and Summary
The legal issues that the Court had to decide included whether the evidence in question was relevant to the complaint and whether it was admissible under the Evidence Act 1995 (Cth). The Court considered the respondent's objections to the admissibility of the evidence and made rulings accordingly. The Court rejected certain paragraphs of the applicant's affidavits and those of the other deponents, as they concerned facts, matters, or circumstances that were not related to the terminated complaint or post-dated the complaint. The Court also admitted some parts of the evidence subject to a limitation under section 136 of the Evidence Act, allowing the evidence to be presented as a submission rather than as evidence of the facts asserted.
The Court's reasoning was based on the need to ensure that the evidence presented was relevant and admissible in the context of the terminated complaint. The Court made rulings on the admissibility of evidence in advance of the hearing to provide clarity on the scope of the factual dispute and the legal questions that would be determined at the hearing for final relief. The Court granted leave to the applicants to file amended points of claim limited to the alleged unlawful discrimination that was the subject of the terminated complaint. The Court also noted that a referral certificate under rule 4.12 of the Federal Court Rules 2011 would be issued. The final orders included the rejection of certain paragraphs of the affidavits, the admission of some parts of the evidence subject to limitations, and the granting of leave to file amended points of claim.
Orders
Orders of the court
1. The following paragraphs of the following affidavits be rejected:
(a) Affidavit of David Robinson sworn 2 June 2011
(i) Paragraphs 16 to 19;
(ii) Paragraphs 33 to 34;
(iii) Paragraphs 35 to 36;
(iv) Paragraphs 44 to 51;
(v) Paragraph 52 to 68 and 127 to 128;
(vi) Paragraphs 69 to 72;
(vii) Paragraphs 73 to 83 and 124 to 125;
(viii) Paragraphs 84 to 85;
(ix) Paragraphs 86 to 87;
(x) Paragraphs 88 to 89;
(xi) Paragraphs 90 to 94 and 126;
(xii) Paragraphs 95 to 96;
(xiii) Paragraphs 97 to 98;
(xiv) Paragraphs 99 to 100;
(xv) Paragraphs 101 to 102;
(xvi) Paragraphs 103 to 104;
(xvii) Paragraphs 105 to 115;
(xviii) Paragraphs 120 to 123;
(xix) Paragraph 129; and
(xx) Paragraph 131.
(b) Affidavit of Sonia El Masri sworn 4 April 2011
(i) Paragraphs 5 to 7; and
(ii) Paragraphs 10 to 14.
(c) Affidavit of Sonia El Masri sworn 23 May 2011
(i) Whole affidavit.
(d) Affidavits of Sally Neighbour sworn 8 April 2011 and 17 May 2011
(i) Each affidavit.
2. The following paragraphs of the following affidavits be admitted into evidence, subject to the limitation that, in each case, the evidence as given is to stand as a submission and not as evidence of the fact or facts asserted:
(a) Affidavit of David Robinson sworn 2 June 2011
(i) Paragraph 2;
(ii) Paragraph 15;
(iii) Paragraph 20;
(iv) Paragraphs 30 to 32; and
(v) Paragraphs 37 and 39.
(b) Affidavit of Sonia El Masri sworn 4 April 2011
(i) Paragraphs 3 and 4;
(ii) Paragraphs 8 and 9; and
(iii) Paragraph 15.
3. The following paragraphs of the affidavit of David Robinson sworn 2 June 2011 be admitted into evidence, subject to the limitation that the evidence as given be confined to the subject of the terminated complaint:
(a) Affidavit of David Robinson sworn 2 June 2011
(i) Paragraph 4; and
(ii) Paragraphs 21 to 23.
4. The following paragraphs of the affidavit of David Robinson sworn 2 June 2011, to which objection has been taken, be admitted into evidence:
(a) Affidavit of David Robinson sworn 2 June 2011
(i) Paragraph 3 (other than the references to paragraphs 3, 4, 6 and 7 of the points of claim);
(ii) Paragraphs 7 to 11;
(iii) Paragraphs 116 to 119;
(iv) Paragraph 130; and
(v) Paragraph 132.
5. The medical reports proposed to be relied upon by the applicants, which they have identified pursuant to orders made on 9 February 2011, be admitted into evidence.
THE COURT:
6. GRANTS leave to the applicants to file amended points of claim limited to alleged unlawful discrimination that is the same as (or the same in substance as) the alleged unlawful discrimination that is the subject of the complaint terminated by the Australian Human Rights Commission by notice given on 1 September 2010, or that arises out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint.
7. NOTES that a referral certificate under rule 4.12 of the Federal Court Rules 2011 will be issued.
Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Be that as it may, I am called upon to make rulings on the admissibility of certain parts of the applicants’ proposed evidence by reference to the issues that have been properly placed before the Court as a result of the terminated complaint made on 24 May 2010.Consideration The respondent has formulated a series of objections, covering all objections it seeks to make to the applicants’ proposed evidence, whether those objections be characterised as ones of relevance or of form. It is convenient to deal with those objections now so that all parties, and the Court, have a clear view of the ambit of the factual dispute and the legal questions that will fall to be determined at the hearing for final relief commencing later this year. Having considered the applicants’ proposed evidence, in light of the relevant legal principles to which I have briefly referred, I make the following rulings. I reject the following paragraphs of the following affidavits on the basis that they concern facts, matters or circumstances relating to alleged unlawful discrimination that is not the same as (or the same in substance as) the unlawful discrimination that is the subject of the terminated complaint, and does not otherwise arise out of the same (or substantially the same) acts, omissions or practices that are the subject of that complaint:(a)Affidavit of David Robinson sworn 2 June 2011 (i)Paragraphs 16 to 19; (ii)Paragraphs 33 to 34;(iii)Paragraphs 35 to 36;(iv)Paragraphs 44 to 51;(v)Paragraph 52 to 68 and 127 to 128;(vi)Paragraphs 69 to 72;(vii)Paragraphs 73 to 83 and 124 to 125;(viii)Paragraphs 84 to 85;(ix)Paragraphs 86 to 87;(x)Paragraphs 88 to 89;(xi)Paragraphs 90 to 94 and 126;(xii)Paragraphs 95 to 96;(xiii)Paragraphs 97 to 98;(xiv)Paragraphs 99 to 100;(xv)Paragraphs 101 to 102;(xvi)Paragraphs 103 to 104;(xvii)Paragraphs 105 to 115;(xviii)Paragraphs 120 to 123;(xix)Paragraph 129; and(xx)Paragraph 131.Some of these paragraphs also deal with facts, matters or circumstances that post-date the making of the terminated complaint.(b) Affidavit of Sonia El Masri sworn 4 April 2011 (i)Paragraphs 5 to 7; and(ii)Paragraphs 10 to 14.(c) Affidavit of Sonia El Masri sworn 23 May 2011 (i)Whole affidavit.(d) Affidavits of Sally Neighbour sworn 8 April 2011 and 17 May 2011 (i)Each affidavit.In addition, Ms Neighbour’s affidavits, in their present form, are based almost entirely on hearsay material or inadmissible opinion evidence. The respondent has objected to parts of the applicants’ proposed evidence on the ground that those parts are not evidence of primary facts but are in the nature of arguments or submissions based on asserted facts. I will admit that evidence subject to a limitation under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act) that it stands as a submission and not as evidence of the facts that are asserted. For the avoidance of doubt, I note that a number of these objections are directed to statements of loss, damage or financial hardship. The reception of those statements, by way of submission, will not stand as evidence of the existence of that loss, damage or financial hardship, its causation or its quantum, beyond the fact that it has been asserted by each deponent to exist, to have been caused or to be of a certain quantum, as the case might be.