Winra v Skycity Adelaide Pty Ltd (No 2)
[2013] FCA 910
FEDERAL COURT OF AUSTRALIA
Winra v Skycity Adelaide Pty Ltd (No 2) [2013] FCA 910
Citation: Winra v Skycity Adelaide Pty Ltd (No 2) [2013] FCA 910 Parties: BETHANY HELENA WINRA v SKYCITY ADELAIDE PTY LTD and DAVID KELMAN File number: SAD 285 of 2011 Judge: BESANKO J Date of judgment: 10 September 2013 Legislation: Sex Discrimination Act 1984 (Cth) s 106(2) Dates of hearing: 4, 6 September 2013 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr P Heywood-Smith QC and Mr S Mitchell Solicitor for the Applicant: Hamdan Lawyers Counsel for the First Respondent: Ms K Eastman SC and Mr A Manos (on 4 September 2013)
Ms K Eastman SC (on 6 September 2013)Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 285 of 2011
BETWEEN: BETHANY HELENA WINRA
Applicant
AND: SKYCITY ADELAIDE PTY LTD
First RespondentDAVID KELMAN
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
6 SEPTEMBER 2013
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The trial date of Monday 9 September 2013 be vacated.
2.The first respondent’s application for the costs of the vacation of the trial date against the applicant’s solicitors on an indemnity basis is adjourned to a date to be fixed.
3.The applicant has leave to file an Amended Reply in terms of the document received in the Registry on 2 September 2013 minus paragraph 1A and the amendment to paragraph 2b.
4.The time within which the applicant is to file and serve any affidavits containing her evidence in chief is extended to Friday 4 October 2013.
5.The time within which the first respondent is to file and serve any affidavits containing its evidence in chief is extended to Friday 1 November 2013.
6.The directions hearing be adjourned to Tuesday 5 November 2013 at 9.30am.
7.Liberty to apply.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 285 of 2011
BETWEEN: BETHANY HELENA WINRA
Applicant
AND: SKYCITY ADELAIDE PTY LTD
First RespondentDAVID KELMAN
Second Respondent
JUDGE:
BESANKO J
DATE:
10 SEPTEMBER 2013
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This proceeding was listed for trial for 4 days commencing on 9 September 2013. On 6 September 2013 I made an order vacating the trial date. These are my reasons for making that order.
The trial date was fixed on 3 June 2013. Shortly before the trial date the applicant applied for leave to amend her Reply to introduce particulars of her plea that the first respondent did not take reasonable steps to prevent the alleged sexual harassment of her by the second respondent within s 106(2) of the Sex Discrimination Act 1984 (Cth). The applicant also applied to vary orders which required her to file and serve her evidence in chief (by 8 March 2013) and in reply (by 1 July 2013) in the form of affidavits. In the two weeks before the trial date the applicant put forward six additional witness statements in the form of affidavits. She sought to call these witnesses at the trial. Finally, the applicant informed the Court that two of her witnesses were not available to give evidence during the week commencing on 9 September 2013.
The events which led to the applications and circumstances were explained in an affidavit of the applicant’s solicitors. The affidavit was an affidavit of Gabriela Madej affirmed on 30 August 2013.
The first respondent opposed the applications on various grounds. A summary of its opposition is as follows.
The first respondent submitted that the proposed amendments to the Reply were fundamentally defective and, in any event, were inadequately particularised. It submitted that the proposed amendments expanded the issues to be determined at trial in a significant way. Furthermore, it submitted that it would be unfair to the first respondent to allow the amendments at this late stage.
The time for the filing and serving of witness statements should not be extended because the first respondent would not have adequate time to address them (i.e., take instructions and respond to them if necessary) before the trial.
The unavailability of witnesses should be dealt with by those witnesses not being called at trial and not by an approach which means that the trial will be fragmented or adjourned.
I start with the last matter. Professor McFarlane was one of the witnesses who is not available to give evidence at the trial. Professor McFarlane is a psychiatrist who has seen the applicant. He has diagnosed her as having symptoms of a chronic post traumatic stress disorder and major depressive disorder. Professor McFarlane’s unavailability appears to have resulted from an incomplete and inadequate liaison between the applicant’s solicitors and Professor McFarlane (paragraphs 13 and 14 of Ms Madej’s affidavit). Professor McFarlane appears to be an important witness in the applicant’s case. I did not think it was appropriate to fragment the hearing. At the same time, I considered it appropriate to adjourn the trial because Professor McFarlane is an important witness and the applicant was not personally at fault. The prejudice to her was greater than the prejudice to the first respondent. The prejudice to the first respondent can, in a large measure at least, be overcome by an order that the first respondent has its costs thrown away if such an order is otherwise appropriate. I add that had the trial been otherwise ready to proceed, I was unlikely to have adjourned the trial because of the unavailability of the other witness, Ms Celand.
The late serving of the six witness statements did not appear to be the applicant’s fault. On the face of it, it appeared to be the fault of her solicitors (last sentence of paragraph 4 of Ms Madej’s affidavit) although the applicant wishes to mount an argument that a substantial reason for the lateness of the statements is default by the first respondent in making adequate discovery. On that basis she resists any order for costs against her or her solicitors. It was not appropriate for me to determine that issue at the time of the hearing of the applications. The prejudice to the applicant if she was not permitted to rely on the statements outweighed the prejudice to the first respondent (if at fault in the relevant sense a simple adjournment, or otherwise an adjournment on terms as to the payment of the first respondent’s costs thrown away) if she was permitted to rely on the statements. As I understood it, the first respondent submitted that the statements were not relevant and, in any event, contained objectionable material. That would only be a reason not to extend the time for filing and serving the witness statements if it was absolutely clear as a preliminary matter (i.e., without extended argument) that that was the case. I did not think that is the case, although I would add that the first respondent’s rights to object when there is an application to tender the statements are fully preserved.
Finally, I determined that I would grant the applicant leave to file the Amended Reply minus paragraph 1A and the addition to paragraph 2b. Neither of those statements or assertions were proper pleas. I was not satisfied at this stage that there were any fundamental defects in the pleas in the particulars in paragraph 3d although that argument can be revived at trial. Furthermore, there may be a need for further particulars of the pleas, but that was a matter that could be dealt with by a separate request from the first respondent and response from the applicant. In fact, I was told a request had been made and a response provided.
A trial date in this Court is not to be vacated without good reason. In this case, I considered that there was sufficient good reason to vacate the trial date. I also made a number of consequential orders.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 10 September 2013
0
0
0