Winters v Fogarty
[2018] FCA 1669
•30 October 2018
FEDERAL COURT OF AUSTRALIA
Winters v Fogarty [2018] FCA 1669
File numbers: VID 1288 of 2013
VID 323 of 2016Judge: BROMBERG J Date of judgment: 30 October 2018 Catchwords: PRACTICE AND PROCEDURE – whether leave should be granted to file Further Amended Statement of Claim and Further Amended Reply – discussion of lack of adequate explanation, substantial delay, prejudice to respondent and case management considerations – application dismissed Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 30 October 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: Ms K Edwards Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondent: Mr P O’Grady QC with Mr L Howard Solicitor for the Respondent: Sladen Legal Counsel for the Intervener: Mr G Edgerton Solicitor for the Intervener: Australian Human Rights Commission ORDERS
VID 1288 of 2013
VID 323 of 2016BETWEEN: LEILA WINTERS
Applicant
AND: BASIL MICHAEL FOGARTY
Respondent
AUSTRALIAN HUMAN RIGHTS COMMISSION
Intervener
JUDGE:
BROMBERG J
DATE OF ORDER:
30 OCTOBER 2018
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application dated 26 October 2018 is dismissed.
2.The costs of the applicant’s interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
On 15 November 2017, I made an order in proceeding VID 1288 of 2013 that the following question be heard separately from any other questions in that proceeding:
(a)Is the Deed of Release and Settlement dated 18 March 2015 (“Deed”) effective or alternatively, void, voidable and/or unenforceable?
(b)Is the applicant estopped from maintaining proceeding VID 1288 of 2013?
That separate question, together with proceeding VID 323 of 2016 was the subject of an order that they be heard together. The trial of those matters, having been fixed many months ago, commenced yesterday.
As is outlined in the applicant’s outline of submissions, the issues raised in the trial fundamentally concern the validity of the Deed. The applicant seeks to have the Deed declared void and unenforceable on the basis that:
(a)the respondent, by his conduct, victimised the applicant under s 51 of the Age Discrimination Act 2004 (Cth) (“ADA”) and s 94 of the Sex Discrimination Act 1984 (Cth) (“SDA”) and, as a result, the Deed was obtained unlawfully and in breach of those Acts and ought to be set aside;
(b)by reason of the applicant’s lack of mental capacity to enter in to the Deed, the Deed is voidable at the election of the applicant; and
(c)by reason of the respondent’s conduct, the Deed is the product of the unconscionable conduct of the respondent and voidable at the election of the applicant.
By an interlocutory application filed at 5.25pm on the last business day prior to the commencement of the trial, the applicant seeks leave to file a Further Amended Statement of Claim in proceeding VID 323 of 2016 and a Further Amended Reply in proceeding VID 1288 of 2013.
I will deal first with the application to amend the Amended Statement of Claim.
The amendments sought to be made to the Amended Statement of Claim would have the effect of extending the victimising conduct alleged against the respondent and bring into the proceeding a new basis for the applicant’s claim of victimisation.
The applicant’s current case, put broadly, relies upon the actual making of a claim by her of discrimination under the SDA and the ADA as the reason or a reason for the detriment she alleges she was subjected to at the hands of the respondent. As the claim stands, the detriment which the applicant alleges she was subjected to relies only upon the respondent’s conduct of the litigation in which her claims of discrimination were made (“litigation conduct”). Under the current pleading, the litigation conduct is not only relied upon as the detriment for the purposes of s 94 of the SDA and also s 51 of the ADA, but is also relied upon in relation to the following matters:
(a)to establish that the respondent intended to and did exacerbate the mental trauma occasioned by him upon the applicant (see [270] and [290] of the Amended Statement of Claim);
(b)to establish that the respondent intended to and did create “undue burdens” for the applicant (see [277] and [291] of the Amended Statement of Claim);
(c)to establish that the respondent intended to and did exploit the psychiatric condition of the applicant (see [279] and [293] of the Amended Statement of Claim); and
(d)to establish that the respondent intended to and did cause distress to the applicant (see [281] and [296] of the Amended Statement of Claim).
The alleged detriment caused by the litigation conduct is then used in the current pleading to:
(a)challenge the legality and validity of the Deed by alleging that the Deed was obtained by means of unlawful discrimination and, in that respect, at [301] of the Amended Statement of Claim, the detriment is alleged to have exacerbated the psychiatric harm suffered by the applicant and significantly impaired the applicant’s ability to protect her own interests during the mediation;
(b)challenge the validity of the Deed on that basis that the applicant was affected by mental incapacity. In that respect, as is alleged at [312] of the Amended Statement of Claim, the applicant relies on an allegation that the respondent, by his conduct, was the primary contributor to the acute dissociative reaction that the applicant claims to have suffered when making the Deed; and
(c)raise unconscionability to impugn the validity of the Deed, including at [322] of the Amended Statement of Claim, asserting that the conduct of the respondent created the special disadvantage or disability under which the applicant laboured at the time the Deed was made.
By her proposed amendments to her Amended Statement of Claim, the applicant seeks to extend the victimising conduct she wants to rely upon in two ways. First, by raising additional conduct of the respondent alleged to have occurred in the relevant litigation. In other words, the applicant seeks to expand upon what I have called the “litigation conduct”. Second, the applicant seeks to rely upon a new category of conduct that is alleged to have occurred prior to the commencement of the relevant litigation (“pre-litigation conduct”). One aspect of the pre‑litigation conduct which the applicant seeks to rely upon is an allegation, not before raised, of a breach by the respondent of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
I have mentioned already that an additional impetus or motivation for the alleged discrimination is sought to be raised for the first time. The applicant proposes to assert that the victimisation she alleges she was subjected to occurred for a reason not currently relied upon in her pleading. The new cause or motivation proposed to be relied upon is the making of a workers’ compensation claim by the applicant in November 2012 in which she alleges she made allegations of workplace and sexual harassment. By the inclusion of that matter in the proposed Further Amended Statement of Claim, the applicant seeks to raise a case not currently raised under s 51(1)(vi) of the ADA, and also s 94(2)(f) of the SDA.
A further matter of some significance which is sought to be raised by way of the proposed Further Amended Statement of Claim is a proposed amendment to [309]. In the particulars to [309], the applicant proposes to add a reference to the applicant having taken medication (Temazepam) on 18 March 2015 at the time when she made the Deed. The current pleading, at [198], already makes that allegation. Counsel for the applicant explained, in submissions received on this application, that the real purpose of the proposed amendment, although perhaps not apparent from the terms of the proposed amendment, is to assert that a basis for the applicant lacking the capacity of mind to have made the Deed was that the applicant was under the influence of Temazepam. That, as I understand it, is not raised, either in the current pleadings or by the medical evidence filed on behalf of the applicant. It is, however, the subject of a further affidavit of Associate Professor Jonathan Phillips filed by the applicant without leave on 26 October 2018.
I am satisfied that no prior notice of any intention to rely upon either the pre-litigation conduct or the new claim sought to be raised under s 51(1)(e)(iv) of the ADA or s 94(2)(f) of the SDA or the influence of Temazepam was given to the respondent.
Most of the conduct the subject of the applicant’s attempt to extend what I have called the “litigation conduct” is referred to in affidavits made and filed by the applicant. However, no prior notice was given to the respondent that that conduct was sought to be relied upon as part of the litigation conduct and, consequently, as part of the detriment asserted, or as part of the conduct asserted to have exacerbated the applicant’s mental trauma or distress or as a contributing factor in bringing about the applicant’s alleged incapacity when making the impugned Deed.
Nor, in my view, has any adequate explanation been provided by the applicant as to why the proposed amendments are sought to be made so late in the proceeding. I note, in that respect, that in recent weeks, I have conducted case management conferences on at least three occasions for the purpose of ensuring that all interlocutory issues were resolved and that the proceeding was ready for trial.
I am satisfied that, if the amendments proposed were permitted, substantial prejudice would be inflicted upon the respondent. New instructions would most certainly be required. It is possible that witnesses not currently intended to be called may need to be called. As the facts and matters now sought to be introduced into the applicant’s case are sought to be relied upon as contributors to the psychiatric condition asserted by the applicant, the medical evidence filed by the parties may need to be revisited. That is likely to be necessary in relation to the reliance proposed to be made on Temazepam and its alleged influence upon the applicant.
Attending to those matters is likely to require the adjournment of the trial. At the very least, the capacity for the trial to be completed in the time allocated will be put in great jeopardy. If that occurred, there would likely be a very substantial delay in the disposition of this litigation, which, in my view, would be highly prejudicial to all parties.
As the majority said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [112]:
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.
As the High Court observed in that case, the fact of substantial delay, wasted costs and the concerns of case management will assume importance when a court considers a proposed amendment to the pleadings which will result in the vacation or the delay of a trial. Prejudice to other parties is, of course, a key consideration.
The High Court in Aon made clear that case management considerations, including the interests of litigants generally and the efficient workings of the Court, are also germane to the exercise of my discretion in an application such as this. I refer to, and rely in particular, upon the judgments of French CJ, at [5], [6], [30] and [35] and the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] – [103] and also at [111] – [113]. Case management considerations weight against both the potential vacation of a hearing and also the potential for the trial not to be completed in the time that has been allocated to it.
The applicant’s application for leave to file a Further Amended Statement of Claim is refused.
I turn then to the application for leave to file a Further Amended Reply in proceeding VID 1288 of 2013.
Broadly put, what the applicant seeks to raise, again for the first time, is a new basis for the proposition that the Deed is not binding upon her and should be set aside. The applicant in this respect seeks to rely on Div 9.6 of the Federal Court Rules 2011 (Cth) (“Rules”), which deals with proceedings by or against persons under a legal incapacity. By the proposed amendment, and in substance, the applicant seeks to contend that, during the mediation in which the Deed was made, she was under a legal incapacity within the meaning of Div 9.6 of the Rules and that, in the absence of a litigation guardian having been appointed under the Rules, the Deed is not binding. Although I have been invited to conclude that the case sought to be raised is not arguable, it is not necessary for me to consider whether or not that is so.
In my view, the respondent would be substantially prejudiced if, at this juncture, the applicant was given leave to raise the challenge to the Deed which the proposed amendment contemplates. That proposed amendment raises squarely and directly, in a manner not currently raised, the alleged incapacity suffered by the applicant and its nature. Whether the applicant was under a legal incapacity within the meaning of the Rules requires, by reference to the definitions given in Sch 1 of the Rules and, in particular, the definition of “mentally disabled person”, consideration of whether or not the applicant was “capable of managing [her] own affairs in [the] proceeding” in which the mediation occurred which led to the making of the Deed.
That is not a matter that the respondent has had any opportunity to properly consider or any opportunity to call evidence in respect of.
The consequences for the respondent of a finding that the applicant suffered from a mental disability or illness are potentially more prejudicial to the respondent if the proposed case is permitted, than such a finding may be on the causes of action currently pursued by the applicant. In those circumstances it seems to me highly likely that the respondent will need to reconsider his evidence on the question of the applicant’s mental incapacity and consider whether further or other medical evidence will need to be called.
If the proposed amendments are permitted, the continued hearing of the trial or, at the very least, the completion of the trial in the dates allocated will be put in jeopardy. Relying also on the principles in Aon to which I have already referred, I refuse the applicant leave to file the proposed Further Amended Reply.
Having heard the parties as to costs, I will reserve the costs of the applicant’s interlocutory application and order that the interlocutory application be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 2 November 2018
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