FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited (No 2)
[2010] FCAFC 118

THE COURT ORDERS THAT:

1.                  The schedule to the orders made on 2 September 2010 be amended by adding at the end of paragraph (c)(ii) “and 18(y)”.

2.                  The order made on 1 September 2010 be set aside.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.                  Leave to appeal be granted.

2.                  On or before 8 September 2010 the appellant file and serve a notice of appeal in the form of the draft notice being annexure SPR 17 to the affidavit of Sian Patricia Ryan sworn 16 July 2010.

3.                  The appeal be allowed in part.

4.                  Orders 2, 3 and 4 made by Katzmann J on 23 August 2010 be set aside and in lieu thereof the following orders be made:

(1)        the applicant have leave to file and serve on or before 30 September 2010 a further amended statement of claim that makes only the amendments provided for in the schedule below;

(2)        on or before 28 October 2010 the respondent file and serve any defence to the further amended statement of claim;

(3)        the applicant pay the respondent’s costs thrown away by reason of the amendments;

(4)        the costs of the application to amend be each party’s costs in the proceedings;

(5)        the proceedings be listed for directions before Buchanan J not before 11 a.m. on 3 September 2010.    

5.                  Judgment on the amendment proposed to paragraph 18(y) stands reserved.

6.                  The respondent pay one half of the appellant’s costs of the appeal and application for leave to appeal.

7.         The Court reserves its reasons for these orders.

Schedule

            The amendments shall do no more than:

(a)        insert the amendments marked in colour in the draft amended statement of claim commencing at appeal book volume A at page 119 (“the Draft Pleading”) to paragraphs 12, 14, 15, 37, 38, 45 (except for paragraphs 45(d), (e) and (f)), 74, 75 (adding “PO” after “46” and deleting the words in paragraph 75(a) after “SDA applies” up to and including “Behaviour”);

(b)        re-plead in proper form such of the publications relied on as injurious falsehoods that the applicant has identified in the Draft Pleading as particulars to paragraphs 92(b)(i) to (vi) inclusive,  92(c)(ii), (iii), 92 (d)(i)-(iii) inclusive, 92(e)(i), (ii), 92(f)(i), (ii), 92(g)(i)-(v) inclusive, (vii)-(ix) inclusive, 92(h)(i), 92(i)(i), 92(j)(i) and (ii) and the material facts to support the causes of action for each such injurious falsehood alleged;

(c)        insert the amendments proposed in the Draft Pleading in:

            (i)         the introduction to paragraph 18;

            (ii)        subparagraphs 18(b) (including particular (i) but not the words “including but                 not limited to”), 18(t) (adding the particular that “the applicant was never                                    issued with a performance feedback and review in that position”);

            (iii)       paragraphs 31, 32, 47(i), (p), (dd), (hh), (ii), 58-67;

            (iv)       the words “of the respondent” in the introduction to paragraph 68;

            (v)        paragraphs 68(s) and (u), 69 (with such amendment, if any, to the words “the                October 2006 Contract” as is necessary to define precisely the contract or                               contracts pleaded earlier on which she relies) and 73(e);

            (vi)       in respect of which leave was granted by the orders made by the primary judge              on 21 July 2010 and 23 August 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1                     On 1 September 2010, the Full Court heard the application for leave to appeal and the argument on the appeal.  On the next day, the Court made orders granting leave to appeal and allowing the appeal in part.  These are our reasons for those orders and a further order on a particular amendment on which we had reserved our decision.

2                     The application for leave to appeal was from orders made by the primary judge, on 23 August 2010.  Her Honour ordered the applicant, Vivienne Dye, to file an amended statement of claim “reflecting the effect of these and the earlier reasons” and that she pay the costs of the respondent, Commonwealth Securities Ltd (“CommSec”).  Her Honour gave two sets of reasons in respect of Ms Dye’s motion to amend dated 15 February 2010 and filed in Court on 11 March 2010:  Dye v Commonwealth Securities Ltd [2010] FCA 720;  Dye v Commonwealth Securities Ltd (No 3) [2010] FCA 903.

Background

3                     In June 2008, Ms Dye began proceedings in this Court against CommSec as her former employer.  She claimed damages for breach of contract, and contraventions of ss 52 and 53B of the Trade Practices Act 1974 (Cth), s 68 of the Fair Trading Act 1987 (NSW) and for orders under s 46PO(4) of the Human Rights and Equal Opportunity Act 1986 (Cth) (now the Australian Human Rights Commission Act 1986 (Cth)) (“the AHRC Act”).

4                     In essence, Ms Dye claimed that she had been subjected to sexual discrimination, harassment and, later, victimisation by a number of officers of CommSec during her employment from about May 2006 to November 2007.  In January 2008 Ms Dye lodged a complaint against CommSec, its parent, Commonwealth Bank of Australia Ltd, and four male officers of CommSec, Angus Patterson, Michael Blomfield, Arnie Selvarajah and Michael Carroll with the Human Rights and Equal Opportunity Commission.  A delegate of the Commission terminated the complaint on 26 June 2008 under s 46PH(1)(i) of the AHRC Act.  Ms Dye then began the proceedings in the Court.

5                     The matter became part of the primary judge’s docket in February 2010.  A previous hearing of seven days fixed for September 2009 had been vacated, principally because Ms Dye was being cross-examined at that time in defamation proceedings brought by Mr Blomfield against Nationwide News Pty Ltd in the Supreme Court of New South Wales. 

6                     On 3 December 2009, another trial was fixed by Moore J to commence on 1 March 2010 for three weeks and then to resume for a further two weeks in July 2010.  That fixture was vacated on 17 February 2010.  Ms Dye had served CommSec’s solicitors with a draft amended statement of claim and motion seeking leave to amend on 15 February 2010.  The motion was filed in Court before the primary judge on 11 March 2010 and she immediately commenced to hear it.  Ms Dye was cross-examined that day on her affidavit in support.   At the conclusion of that day’s hearing, the motion was adjourned part heard and the hearing resumed on 30 April 2010.

7                     In the meantime, however, on 30 March 2010, the primary judge fixed the matter for hearing for four weeks commencing on 6 September 2010.  She heard the rest of the argument on the motion on 30 April 2010 and reserved her decision.  On 9 July 2010, her Honour handed down a 93 page judgment.  Her Honour refused leave to Ms Dye to make many, but not all, of her proposed amendments.  However, no orders were made until 21 July 2010.  On 16 July 2010, Ms Dye filed a motion seeking leave to appeal.  That came before Nicholas J who dismissed the motion on 4 August 2010 on the ground that no appeal lay:  Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817.

8                     On 6 August 2010, CommSec asked the primary judge to deal with a small number of Ms Dye’s proposed amendments that had been overlooked in the reasons of 9 July 2010.  On 23 August 2010 her Honour revoked her orders made on 21 July 2010, published further reasons dealing with the overlooked amendments:  Dye v Commonwealth Securities Ltd (No 3) [2010] FCA 903, and made the orders that came before this Full Court on the application for leave to appeal.  On the same day, her Honour disqualified herself from the hearing of the matter:  Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910.

9                     On 28 August 2010, Nicholas J vacated the unentered order he had made having regard to the decision of the Full Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 and referred the motion for leave to appeal to a Full Court.  The Full Court granted leave to Ms Dye to amend her motion to seek leave to appeal from her Honour’s orders made on 23 August 2010.

10                  The parties have approached the present application on the basis that it is competent following the decision in Cement [2010] FCAFC 101.  There, Keane CJ, Gilmour and Logan JJ held that an earlier ruling that recent amendments to ss 20(3) and 24(1AA) in the Federal Court of Australia Act 1976 (Cth) precluded Ms Dye’s application for leave to appeal from the primary judge’s orders made on 21 July 2010, giving effect to her reasons in Dye [2010] FCA 720, was wrong:  Cement [2010] FCAFC 101 at [19].  The above procedural history is unfortunate.

11                  The parties appear to have fought every issue before the primary judge without regard to their obligation under s 37N of the Federal Court of Australia Act to assist her Honour in achieving the overarching purpose of the civil procedure provisions of that Act and the Federal Court Rules.  Had the parties engaged in greater co-operation to focus on the real issues in dispute in respect of the proposed amendments, her Honour’s task, and that of the Full Court, would have been assisted considerably, and the scope of the real controversy substantially refined.

12                  Because the matter was listed for the hearing to commence before Buchanan J on 7 September 2010, we considered it important to make orders promptly.  One proposed amendment (to insert par 18(y)), however, required us to reserve our decision.  That required further consideration of the construction of s 46PO(3) of the AHRC Act.  CommSec had filed a notice of contention on this issue. It concerned whether a complaint of a more serious sexual assault on Ms Dye on 9 June 2006 could be made the subject of proceedings under s 46PO(3), when her complaints to the Commission had alleged sexual assaults that had allegedly occurred on 1 and 13 June 2006, but which did not describe the very particular detail of the claimed 9 June 2006 assault.

The Outline of the Issues

13                  A great number of amendments were proposed by Ms Dye and her Honour dealt with them under six general categories.  Many of the amendments which we consider ought to have been allowed, raised either legal issues, or small factual questions, that were already within the controversy to be quelled on the existing pleadings.  Her Honour had to deal with more amendments than have been pressed on appeal.  We also concluded that a not insubstantial number of amendments were properly rejected by the primary judge.

14                  Ms Dye contended that her Honour erred and pressed for a large number of the amendments which the primary judge rejected.  We propose to explain broadly why we allowed, or rejected the various amendments the subject of the appeal.

The Grounds of Appeal

15                  Ms Dye contended that the primary judge had:

(a)        refused to grant all or some amendments as sought, misapplied both Aon Risk Services Australia Ltd v Australian National University (2009)239 CLR 175 and Pt VB of the Federal Court of Australia Act and erred in fixing the trial date before disposing of the amendment application (grounds 1, 2, 3, and 11);

These grounds relate to pars 18, 31, 32, 47, 58-67.

(b)        erred in refusing to grant leave to re-plead on questions of form (ground 4);

This ground relates to pars 12, 14, 15, 37, 38, 45, 74 and 75.

(c)        erred in finding that it was inconceivable that Ms Dye’s claim of victimisation could be proved (ground 10);

This ground relates to pars 68, 69, and 73(e).

(d)             erred in refusing leave to amend her claims for:

·               injurious falsehood, assuming that they could be litigated in separate proceedings Ms Dye had brought against the Bank in the Supreme Court of New South Wales (“the defamation proceedings”) and, finding that Ms Dye must be taken to have known sufficient information in 2008 to commence proceedings for injurious falsehood since she had read articles in the media at the time and determining the merits of these claims;

·               breach of privacy (grounds 6, 7, 8 and 9);

These grounds relate to pars 91-101, 102-114.

(e)        erred in failing to have regard to the scope of the matter or controversy the subject of the jurisdiction of the Court (ground 5);

(f)         erred in making adverse credit findings against Ms Dye (ground 12).

We have not had to consider the latter two grounds.

Delay, Pt VB of the Federal Court of Australia Act and the Hearing Date

16                  At the conclusion of the argument we were satisfied that her Honour erred in her approach to the question of whether or not to grant or reject many of the proposed amendments.  First, her Honour applied an overarching test that Ms Dye had to offer an explanation for any delay in pleading.  Second, the primary judge did not, in all relevant instances, consider or weigh the issues of delay, lack of its explanation, cost and prejudice against the granting of permission to Ms Dye to alter her case.  Third, her Honour had regard to the proximity of the hearing date as a reason for rejecting the amendments, even though her Honour had fixed the hearing when the motion to amend was part heard and delivered her initial reasons only two months before this trial was set to commence.  Her Honour said at different points in her reasons:

“I am mindful of the fact that the trial is due to begin in less than two months and that this is the third time trial dates have been fixed in this matter.”

“[Ms Dye] is seeking an indulgence from the court weeks away from the trial.  This circumstance alone calls for a degree of precision sadly missing from the proposed amended statement of claim.”

Thus, had the amendments been allowed at the hearing of the motion or earlier, their impact, if any, on the parties’ preparation for the trial would have been less.  The proper concession before us by counsel for CommSec that some amendments did not cause it prejudice may have properly been elicited at the hearing by her Honour in considering the matter.

17                  Her Honour held, correctly, that the person seeking an amendment bore an onus to persuade the Court that it be made.  However, the primary judge referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J, 547 per Toohey and Gummow JJ and 551 per McHugh J and then she said:

“There is no entitlement to the orders sought.  The respondent does not have to prove anything.”

18                  Taylor 186 CLR 541 was not a case concerned with an application to amend in existing proceedings.  Rather, it was concerned with considerations relevant to the grant of an extension of time for a plaintiff to bring personal injury proceedings after the expiry of the ordinarily applicable limitation period in which actions could be commenced.  The discretion to grant an extension of time in which to commence proceedings is substantively different from the discretion to permit an amendment in existing proceedings.  In the former situation a proposed defendant or respondent has the benefit of an existing statutory bar to being subjected to litigation.  In the latter, the defendant or respondent is a party to an existing proceeding, the regulation of which is in the control of the Court, albeit subject to any overriding statutory constraint or procedural rule. The distinction between the nature of the discretions is that one involves altering a substantive right, by permitting the bringing of proceedings outside the ordinary limitation period, and the other involves regulating procedural rights in defining the nature of the controversy that the Court is engaged to quell:  cf  the analogous position discussed in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4] per Brennan CJ and McHugh J, 539-543 [66] per Kirby J.

19                  The primary judge held that a party had no right under the Federal Court Rules to amend after the pleadings were closed and that leave to do so was required.  She correctly referred to the provisions of O 13 r 2 and Pt VB, including ss 37M-37N of the Federal Court of Australia Act as relevant to the grant of leave to amend.  Her Honour referred extensively to Aon 239 CLR 175.  Throughout her Honour’s reasons she referred to the delay and lack of explanation by Ms Dye in seeking to plead particular amendments as a reason for rejecting them.  Her Honour said that:

“23       … “generally speaking” where one party seeks that a discretion be exercised in his or her favour to the disadvantage of another, an explanation will be required.  Where the rules attach importance to minimising delay, in most cases where it occurs a party should explain it.  That involves showing that the application is brought in good faith.  It also involves bringing to the court’s attention the circumstances giving rise to the amendment, so that they can be weighed against the effects of any delay and the objectives of the court’s rules.  The failure to provide such an explanation was fatal in Aon.

24        The applicant seeks to distinguish Aon because her application to amend was made before the beginning of the hearing and, when she made it, hearing dates had not been fixed.  Although each case must be determined on its merits and there are differences between the circumstances here and in Aon, the differences are not as significant as [counsel for Ms Dye] presented them.  What is more, without objection, six weeks have now been allocated for the trial (beginning on 6 September this year) – 12 months after the matter was first set down for hearing – and less than two months away.  In any event, it is the principles enunciated in Aon with which the Court is concerned.  This application contributed to the vacation of the March hearing dates.”

20                  A Full Court (Keane CJ, Gilmour and Logan JJ) pointed out in Cement [2010] FCAFC 101 at [51], that Aon 239 CLR 125 was not a one size fits all case.  The Full Court drew attention to the observations of the plurarity in Aon 239 CLR at 206 [75] that statements made in cases concerning amendment of pleadings were best understood by reference to the circumstances of those cases, even if those statements were pronounced in terms of general application.  So, in Aon 239 CLR 175, the context of the decision was that the amendment application was made early in a trial, following a deliberate tactical decision made some time before, not to seek that amendment.  That resulted in the finding in Aon 239 CLR at 216 [106]-[107] that the delay required an explanation and none had been provided.

21                  In Aon 239 CLR at 215 [103] Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

“Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”  (emphasis added)

22                  Importantly, their Honours referred to the circumstance that the other party would be disadvantaged by the exercise of the discretion and the need to consider the effects of any delay.  Where the effect of an amendment is to introduce a small, new issue that causes no substantive prejudice and does not adversely affect the conduct of the proceedings, a lack of, or a deficient, explanation for a party’s delay in raising that issue may be a factor to be weighed, but, ordinarily, it is hardly likely to be decisive, as the plurality said in Aon 239 CLR at 214-215 [102].

23                  The amendments were numerous and heavily contested in many respects. The task facing the primary judge was a daunting one. However, her Honour’s references to delay when refusing many of the proposed amendments, were not accompanied by any consideration of the cost, the effect of delay and any prejudice to CommSec.  Nor did her Honour then weigh any of those issues against granting the amendment.  We are satisfied that reading her Honour’s reasons as a whole she applied the wrong test to the question of delay.  Her Honour’s reference to Taylor 186 CLR 541 and her view that CommSec had no onus at all, led her to pay insufficient regard when considering what, if any, prejudice to CommSec might reasonably be assumed, in the absence of any attempt by it to assert some such prejudice.

24                  The amendment proposed for par 18(y) was a significant instance of her Honour’s refusal to allow an amendment on the ground of Ms Dye’s delay in raising it.  Her Honour’s application of this factor in her rejection of that particular amendment was illustrative of her reasoning process generally in respect of the relevance of delay and the application of the principles in Pt VB of the Federal Court of Australia Act.  This is so even though Ms Dye gave an explanation for the same delay and her Honour rejected it.  However, the amendment proposed to add par 18(y) also raised other issues, including the construction of s 46PO(3) of the AHRC Act.  It is convenient to consider the issues raised by the proposed amendment to add par 18(y) before turning specifically to the other instances in which her Honour refused leave to amend on the grounds of delay or the considerations in Pt VB.

Paragraph 18(y) and the Notice of Contention

25                  Ms Dye alleged that Mr Patterson was the general manager and her direct supervisor  in CommSec’s Sydney office where she worked.  She pleaded par 18 as a catalogue of instances in which she alleged that Mr Patterson breached an implied term of her contract of employment with CommSec “by engaging in behaviours towards [her] including but not limited to” a number of particularised matters.  These allegations included (after amendments that her Honour allowed):

“(a)      making persistent requests for sex;

…

(i)         on two occasions attempting to have sexual intercourse with [Ms Dye] without [her] consent;

…

(o)               on at least four occasions indecently assaulting [Ms Dye].”

26                  Paragraph 18(o) was added by an amendment that the primary judge allowed.  Amendments adding pars 18(w), (x) and (y) were rejected by her Honour, the former two on the bases that they were not referred to in Ms Dye’s complaint to the Commission, two years had elapsed since the proceedings had commenced and “the reason for the delay is not self evident”.  Those proposed amendments were:

“(w)     commenting on the physical appearance of [Ms Dye’s] mother;

(x)           making comments of a sexual nature to [Ms Dye] regarding [her] mother;

(y)           sexually assaulting [Ms Dye].”

27                  The particulars given underneath pars 18(w), (x) and (y) in the proposed amendment consisted of a reference to a statement Ms Dye had made to the New South Wales Police on 13 February 2009 (“Ms Dye’s police statement”) which already had been served on CommSec.  In that statement she alleged that she had been assaulted on 9 June 2006.  She asserted that Mr Patterson had inserted his finger in her vagina while holding her down on her bed.  Her police statement elaborated on other details of that alleged assault.  Ms Dye’s descriptions of the date and manner of this alleged sexual assault were different from two other, and apparently less egregious, but still serious, sexual assaults that she had alleged had occurred on 1 and 13 June 2006 in her complaint to the Commission and her original statement of claim.  Counsel for CommSec informed the Full Court that Mr Patterson denied all of those allegations.

28                  The proposed par 18(y) was challenged on several bases before the primary judge and on the appeal.  First, CommSec argued that the allegation it made could not be raised at all because it had not been, and could not be construed to have been, part of Ms Dye’s complaint to the Commission.  This was by reason of the differences between it and the dates and descriptions of the 1 and 13 June 2006 alleged incidents.  This raised a question of construction of the s 46PO(3) AHRC Act.  It relied on its notice of contention that her Honour had misconstrued s 46PO(3) and erroneously found that the alleged incident of 9 June 2006 was capable of being characterised as the same or substantially the same conduct as Ms Dye had alleged occurred on 1 June 2006.  Those instances had been referred to in par 18(i).  Second, CommSec contended, and the primary judge found, that Ms Dye had not adequately explained the delay in seeking to make this amendment.  Third, the primary judge inferred that CommSec would suffer presumptive prejudice from the passage of time.

29                  CommSec also argued that her Honour’s refusal to allow an amendment to add par 18(y) was not the subject of a ground of appeal.  However, her Honour refused leave to amend because she was not satisfied that Ms Dye had adequately explained the delay in raising this allegation, had made a deliberate tactical decision not to raise it beforehand and had not demonstrated that CommSec would suffer no prejudice.  Thus, this amendment was within the first group of grounds of appeal.

The Statutory Scheme

30                  “Unlawful discrimination” was defined in s 3(1) of the AHRC Act as meaning “any acts, omissions or practices that are unlawful under … (c) Part II of the Sex Discrimination Act 1984 …” and included any conduct that is an offence under s 94 of that latter Act.  Under s 28A of the Sex Discrimination Act “sexual harassment” was defined.  A person sexually harassed another if the former made an unwelcome sexual advance, or unwelcome request for sexual favours to the other or engaged in other unwelcome conduct of a sexual nature in relation to the other in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other would be offended, humiliated or intimidated (s 28A(1)).  “Conduct of a sexual nature” was defined as including making a statement of a sexual nature to a person or in his or her presence (s 28A(2)).

31                  Under s 46P of the AHRC Act, a person or persons aggrieved could lodge a written complaint with the Commission alleging unlawful discrimination.  Complaints also could be lodged as representative complaints (ss 46P(2)(a)(ii), (b)(ii), (3), 46PB-46PC and 46PO(2) and (3)).  A complaint could be amended at any time with leave of the President of the Commission, but this possibility did not by implication limit any other power to amend the complaint (s 46PA).  Critically, s 46PO provided:

“46PO  Application to court if complaint is terminated

(1)        If:

(a)        a complaint has been terminated by the President under section 46PE or 46PH; and

(b)        the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note:    Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2)        The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)        The unlawful discrimination alleged in the application:

(a)        must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)        must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(4)        If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)        an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)        an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)        an order requiring a respondent to employ or re-employ an applicant;

(d)        an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)        an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)        an order declaring that it would be inappropriate for any further action to be taken in the matter.

(5)        In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

(6)        The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7)        The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8)        The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.”  (emphasis added)

Consideration - s 46PO of the AHRC Act

32                  The Commission noted in its summary of her complaint in its notice of termination, that Ms Dye had alleged that Mr Patterson had:

“… engaged in unwelcome conduct of a sexual nature which included:

·                making persistent requests for sex;

·                making comments of a sexual nature, includingasking if he could … bring sex toys on a work trip;

…

·                on two occasions going to her apartment and attempting to have sex with her by physically restraining her by the wrists and then taking off his pants.”  (emphasis added)

33                  The Commission instanced these matters as part of Ms Dye’s overall allegation that “during the course of her employment she was sexually harassed and discriminated against on the basis of her sex by two senior managers at the [Bank], [Mr Patterson] and Mr Michael Blomfield”.

34                  The Commission’s summary, in its notice of termination, also recorded that each of Mr Patterson and Mr Blomfield strenuously and strongly denied that he had engaged in the behaviours complained of.  In particular, the Commission recorded that Mr Patterson strongly denied that he had at any time attempted to have sex with Ms Dye, made persistent requests for sex or sexually harassed her.

35                  In Ms Dye’s January 2008 statement to the Commission she gave a detailed account, with dates, of the circumstances of her employment with CommSec of which she complained.  These included descriptions of:

·               an incident on 1 June 2006 in which Ms Dye alleged that Mr Patterson pinned her down by her wrists on her bed in her apartment, and took off his pants, only desisting after her continuing protests;

·               another incident on 13 June 2006 where “once again in the apartment [Mr Patterson] attempted to force himself upon me so I asked him to leave immediately and he left”.

36                  There was no reference to any event occurring on 9 June 2006 in Ms Dye’s statement to the Commission.  However, in her police statement she gave a very detailed account of an alleged sexual assault on her by Mr Patterson involving digital penetration that she claimed had taken place on 9 June 2006.

37                  Ms Dye said in her affidavit in support of the amendments that she sought to include “three further allegations of sexual harassment, including a sexual assault, which I allege occurred on 9 June 2006”.  She also said that the conduct that she alleged had occurred on 9 June 2006 was set out in her complaint to the Commission but did not identify how.  She swore that she had been reluctant to include the 9 June 2006 incident in the proceedings because the Bank’s representatives had informed her that it would apply to stay them, presumably pending the outcome of the police investigation and any charges that may have resulted.  She said that she had made the same allegation in July 2009 in a worker’s compensation claim.  She said that the reason that she subsequently wished to raise these matters in the proceedings before her Honour was that the police investigation had been suspended because of the unavailability of a witness.  In considering the effect of what Ms Dye considered to be threats from bank’s executives it must be borne in mind that CommSec is a wholly owned and controlled subsidiary of the Bank.

38                  The primary judge permitted Ms Dye to be cross-examined on her affidavit.  In re-examination Ms Dye responded to a suggestion that she had made a tactical decision earlier not to include the alleged events of 9 June 2006 in the statement of claim.  She asserted that those details had been “brought forward” in her description of the alleged sexual assault on 1 June 2006.  Her Honour commented that it was difficult to reconcile the two events described as occurring on 1 and 9 June 2006.  She found that Ms Dye’s evidence in her affidavit and cross-examination was inconsistent.  However, her Honour concluded that:

“… despite the very important differences between the accounts [of the 1 and 9 June events], I am prepared to accept that the [9 June] allegation does not relate to a new incident.  Rather, it is a new allegation (or, more accurately;  a new set of allegations) about the same incident and it therefore falls within the ambit of the terminated complaint.”

39                  This finding was the subject of the notice of contention.  If the allegation of unlawful discrimination on 9 June 2006 were outside what s 46PO of the AHRC Act permitted, then CommSec argued no amendment to include that matter in an application under s 46PO(1) could be allowed. 

40                  In the course of rejecting the application to add par 18(y), her Honour said that not only had Ms Dye not adequately explained her delay in seeking to plead this allegation but:

“111     Neither am I satisfied that she has demonstrated that the respondent would not now suffer prejudice if she were permitted to expand her pleading to include it.

112       The remarks McHugh J made in Taylor [186 CLR] at 551–555, though made in the context of an application for extension of time, are equally applicable here.  The quality of justice deteriorates with time.  In almost every case in which there has been an extensive delay there will be the potential for prejudice.  Memories fade.  Crucial witnesses may become unavailable or the quality of their evidence may diminish.  Important documents may have disappeared or been destroyed.  It is true that the respondent has put on no evidence to prove actual prejudice but, as the High Court acknowledged in Taylor, prejudice will also arise in other, subtle, sometimes unrecognised ways.  Prejudice can be inferred or presumed from the passage of time.”  (emphasis added)

41                  Her Honour construed s 46PO(3) as precluding an applicant bringing proceedings for either an act that was similar in kind to the acts complained of in the terminated complaint or another act by the same individual.  She also held that a new incident, even of the same kind or type or substantially the same conduct was outside s 46PO(3), following Raphael FM in Gama v Qantas Airways Ltd (2006) 195 FLR 475 at 480 [9].  Accordingly, the primary judge held that the sexual assault alleged to have occurred on 9 June 2006 was not the same or substantially the same conduct as that alleged to have occurred on 1 June 2006.  But, her Honour then found that if Ms Dye intended to refer to the events she later attributed to 9 June 2006 in her description to the Commission of the events she attributed to 1 June 2006, then there was a sufficient identity between the two for the purposes of s 46PO(3).  Her Honour found that the description of the alleged 9 June 2006 incident was a set of new allegations about the same incident and fell within the existing complaint.

42                  CommSec argued that her Honour was wrong to make that last finding.  It argued that the 9 June 2006 allegations constituted a significant expansion of the conduct, its gravity and time period alleged.  It contended that Ms Dye had deliberately framed her case for the preceding two years without pleading this new incident, had delayed and had not explained why she now sought to raise it.  It submitted that the allegation was not the same or substantially the same conduct or any conduct described in Ms Dye’s complaint before the Commission and that it was entirely new.

43                  The purpose of s 46PO is to define and filter the cause of action it creates so that it will correspond, within the limits set in  ss 46PO(1) and (3), with the complaint terminated by the President of the Commission:  cp  Grigor-Scott v Jones (2008) 168 FCR 450 at 454 [18]-[20] per Emmett, Lander and Tracey JJ.  However, in construing how far s 46PO(3) defines and limits a complaint it is important to bear in mind that s 46PO itself contemplates that a complaint, and proceedings based on it, can be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA of the Federal Court of Australia Act.

44                  The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission.  That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission.

45                  Thus, a complaint can be made by a person seeking to represent, for example, aged, blind or deaf persons or persons suffering from a particular disability, and allege unlawful discrimination by the provider of a public service such as transport or education.  Such a complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of the complaint.  It is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement.  Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission.  However, the dates, times, places and precise circumstances each group member may instance in giving evidence in representative proceedings would almost never be given in any detail or at all, in a complaint to the Commission.   But, a person entitled to seek relief as a group member under ss 46PO(4) and (5) cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge.

46                   Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination.  In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility.  However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission.  As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”:  Travers [2000] FCA 1565 at [8].  His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading.  Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information:  90 FCR at 188B.  Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

47                  As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination:  see too Simplot 69 FCR at 94F-G.  In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3).  He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged:  Charles 105 FCR at 580 [39].

48                  The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act.  It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility.  And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court.  Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”.  It provided in relation to, among other provisions, s 46PO:

 “Court not bound by technicalities

46PR    In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms.  This section has effect subject to Chapter III of the Constitution.”

The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR:  Maghiar v Western Australia [2002] FCA 262 at [18] per French J.

49                  Here, Ms Dye alleged in her complaint that she had been subjected to sexual harassment and discriminated against on the grounds of sex by a number of persons while she was employed by CommSec.  The Commission, in its notice of termination, characterised her complaint in relation to Mr Patterson as his engaging “in unwelcome conduct of a sexual nature which included” a number of specific incidents.  That was not an exhaustive description of his impugned behaviour.

50                  Ms Dye’s description of the 9 June 2006 events in her police statement could be seen as conduct that arguably arose out of substantially the same acts, omissions and practices she had alleged amounted to sexual harassment by Mr Patterson.  She had specified to the Commission two alleged sexual assaults on 1 and 13 June 2006.  Although the alleged assault of 9 June 2006 was, if true, a more serious sexual assault, it was capable of being viewed as in substance a further allegation of a sexual assault by the same alleged harasser in the course of Ms Dye’s employment.  Her complaint to the Commission was that he had engaged in a course of sexual harassment of her in a variety of forms over a period of months.  The alleged incident on 9 June 2006 was, if it occurred, capable of being characterised as an act that arose out of the same unlawful discrimination of which she complained or it was the same in substance.

51                  The Commission had described Ms Dye’s complaint to it concerning Mr Patterson’s alleged sexual harassment in inclusive, rather than exhaustive, terms.  That is, it understood her to be alleging instances of a pattern of behaviour that it would not fully investigate.  This was because it was satisfied that there was no reasonable prospect of the matter being settled by conciliation and so it dismissed the complaint under s 46PH(1)(i) of the AHRC Act.

52                  There was sufficient evidence in support of the proposed par 18(y) to require a trial to determine whether it had properly been made part of Ms Dye’s allegation of unlawful discrimination within the meaning of s 46PO(3).  There may well be cases where at an interlocutory stage it is clear that an allegation could not be made in an application under s 46PO(3) because it fell outside any issue reasonably justiciable in respect of a complaint terminated by the Commission.  But in this matter, the scope of Ms Dye’s complaint to the Commission was sufficiently wide to prevent the summary exclusion of par 18(y) from the statement of claim on the sole ground that it could not be made the subject of an application under s 46PO(3).

53                  Her Honour did not consider what prejudice to CommSec might reasonably be assumed (Aon 239 CLR at 214 [102]).  Rather, she required Ms Dye to negate the existence of prejudice to it.  Nor did her Honour weigh up that Mr Patterson was highly likely to be able to give his version of events in evidence.  He had given a comprehensive denial of all Ms Dye’s allegations to the Commission.  The striking nature of the alleged assault by him, had only a small range of possible answers:  outright denial (as was his position) or agreement (which was highly improbable, given it would have amounted to admission of a crime);  and, it is just as unlikely that he would have said that he did not remember.  In addition, this striking event was alleged to have occurred four years before.  Allegations of sexual assault allegedly occurring years, and even decades ago, and over a period, come before the criminal courts almost every day and are able to be heard and decided.

54                  During the hearing of the appeal the Full Court asked counsel for CommSec what prejudice it would suffer if this amendment were allowed.  She said that she could not point to any and that her instructions were that Mr Patterson denied this particular allegation and all Ms Dye’s other allegations of inappropriate sexual behaviour by him.  Yet, her Honour applied a test that Ms Dye had to prove that CommSec would not suffer prejudice if the amendment were allowed. 

55                  This allegation of an assault on 9 June 2006, albeit raised late, was raised in a context between two alleged assaults by Mr Patterson, previously pleaded as occurring on 1 and 13 June 2006.  The determination of whether any of those events occurred will depend primarily on whether Ms Dye’s evidence is sufficiently probative having regard to the seriousness of the allegations:  s 140(2) of the Evidence Act 1995;  Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 per Dixon J.  Mr Patterson would have been likely to have been called and, if he chose to give evidence rather than exercising his right to silence, to have denied all three alleged assaults.  No delay in the trial date would occur and no relevant prejudice to CommSec was reasonably apparent were this amendment to be granted.

56                  The primary judge found that Ms Dye had not explained her delay in raising the issues in par 18(y).  She regarded the delay in making the allegation both to the police and in the proceedings as significant.  Her Honour appeared to accept Ms Dye’s explanation for not raising the allegation in the proceedings between her police statement and the time of the amendment.  Ms Dye had said that she was reluctant to include the 9 June 2006 allegations in the proceedings because of the threat that the Bank, and so CommSec, would then seek a stay while the police investigation proceeded.  The other delay in Ms Dye failing to raise the specific allegation earlier than the time of her speaking to the police was not explained, as her Honour found.  But that did not provide a conclusive reason to prevent her being entitled to amend.  There was no suggestion that Ms Dye had lacked good faith in raising the allegation.  Many victims of sexual assault delay in complaining, sometimes for years. In circumstances where a threat by an employer, or parent company of an employer, is a cause for delay, a court may need carefully to consider whether the delay in making an allegation was as a consequence of a deliberate tactical decision.

57                  In effect, the relevant delay was between about January 2008 and about February 2009.  But here, Mr Patterson and CommSec simply denied Ms Dye’s allegations.  There was no prejudice that they would be likely to suffer where the resolution of this aspect of controversy would depend on her oath against his oath.  The addition of this allegation would be unlikely to delay or extend the hearing.  As Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Aon 239 CLR at 214 [102]:

“It is the extent of the delay and the costs associated with it, together with the prejudice that might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case.”

58                  Here, there was a relatively small period of delay, no prejudice, assumed or asserted, no substantive extra costs and a real issue that was of significance to Ms Dye.  The balance was substantively in favour of the grant of this amendment.  Her Honour erred because she failed to assess and weigh the relevant factors as required by Aon 239 CLR at 214 [102].

59                  In so far as the proximity of the hearing date affected the exercise of her Honour’s discretion, we make the following points. In our view, her Honour should not have fixed a hearing date unless she had determined that the undecided application to amend, if granted, would not affect the maintenance of that hearing date.  It was unhelpful to the orderly resolution of the proceeding to fix a hearing date of 6 September 2010 on 30 March 2010, in circumstances where a considerable time may have been required to deal with the lengthy contentions about the voluminous amendments before the primary judge, while taking the then imminence of the hearing into account.

Paragraphs 18(w) and (x)

60                  The primary judge refused to allow pars 18(w) and (x), which involved new allegations that Mr Patterson had commented about Ms Dye’s mother.  Her Honour found that these remarks were capable of amounting to sexual harassment and arose out of the same or substantially the same conduct alleged against Mr Patterson and described in Ms Dye’s complaint to the Commission.  However, as the primary judge noted, this conduct was not referred to in Ms Dye’s complaint to the Commission and she had given no reason why she had only sought to raise it later.  Ms Dye did not put any argument that these two allegations had a significance or importance to her case.  They were substantively different from the far more serious allegation in par 18(y).  The importance or relevance of these two allegations were not elaborated in submissions or argument in the Full Court.  Her Honour’s finding that the reason for these two late amendments had not been explained was open to her.  We were not persuaded that her Honour erred or that the amendments to add pars 18(w) and (x) were necessary to enable a just, quick, inexpensive or efficient resolution of the controversy between Ms Dye and CommSec according to law to be achieved:  see s 37M of the Federal Court of Australia Act.

Paragraph 18(t)

61                  Her Honour also rejected a proposed amendment to add par 18(t).  This alleged that Mr Patterson had breached the implied contractual term of trust and confidence by failing to notify CommSec at any time of Ms Dye’s rank of level 3, executive manager.  This allegation was based on her complaint to the Commission that she had never been issued with a performance feedback and review in that position.  The primary judge described this proposed amendment as “troubling” and not supported by the complaint.  We respectfully disagree for the reasons set out below.

62                  Ms Dye’s case, as articulated in her complaint to the Commission, was that Mr Patterson had told her that she was in a position equivalent to an executive manager level 3.  In other words, the proposed amendment in par 18(t) complained that Mr Patterson, a very senior executive, who, Ms Dye alleged was sexually harassing her, told her she held a position in CommSec that he did not cause CommSec to recognise.  The promise of promotion by a superior seeking benefits, including sexual favours, from an inferior is as old as time itself.  Ms Dye’s complaint was, in the context of Mr Patterson’s alleged sexual harassment, that this promise had moved to a positive statement to her by her superior that she had been given a higher position, but that he did not cause it to be notified to CommSec.  Accordingly, we concluded that the amendment by adding par 18(t) should have been granted.

Refusal to Grant Leave to Re-plead on Questions of Form

63                  At the commencement of the hearing before the Full Court, we enquired of counsel for CommSec whether she could suggest any prejudice were Ms Dye permitted to make amendments adding some express terms to the contracts she had pleaded (pars 15, 38, and 45(a)-(c)), adding to some particulars (pars 12, 14 and 37) and making a minor addition (in par 74) of the words “its employees or agents” to the descriptions of Mr Blomfield and Mr Selvarajah.  The primary judge had rejected those amendments because Ms Dye had not explained her delay in raising them and her Honour did not consider them to be properly particularised.  On the assurance from counsel for Ms Dye that all evidence had been served by her on which she proposed to rely were these amendments made, counsel for CommSec said that it would suffer no prejudice if these amendments were allowed to be made.

64                  In our opinion, these amendments should have been allowed by her Honour.  The amendments to the express terms of the contracts simply alleged that Ms Dye had been promised that CommSec would pay $50,000 of the cost of a postgraduate degree as part of her remuneration.  This could not have expanded the scope of the hearing or the issues to any significant extent.  The particulars to par 12 (the amendment of which was also refused) had asserted that this term had been agreed in communications made between Ms Dye and an officer of CommSec in March or September 2005.  Thus, the conversations or other communications relied on would have been in evidence for other purposes.  No prejudice to CommSec could have been occasioned by allowing these amendments.

65                  We respectfully consider that the primary judge misunderstood the nature of Ms Dye’s pleaded and proposed contractual case.  Her Honour said that she was disposed, but had not been invited, to strike out the plea in par 12 that Ms Dye had been promoted in September 2005.  Her Honour said that she was “at a loss to understand the relevance of the assertion [in par 14] that [Ms Dye] did not receive a written contract or performance planning documentation (whatever that meant)”.

66                  Ms Dye’s case, as pleaded, was that she had been promoted to a position and told that she had contractual entitlements, so as to prove, first, her position in CommSec when the sexual and other misconduct she complained of occurred, secondly, the terms of her contract, thirdly, to lay a foundation for her damages claim from loss of her employment and career path, and fourthly, to lay a foundation for a subsequent allegation (which we have already mentioned) that one of her alleged harassers, Mr Patterson, did not formally record in CommSec’s records her promotion (par 18(t)).

67                  These allegations were relevant to establishing Ms Dye’s entitlement to relief.  There was no prejudice to CommSec by permitting them to be raised.  Little, if any extra time would be likely to be taken in dealing with them in evidence or argument.  In our opinion, her Honour erred in not considering the apparent relevance of the amendments, their importance to Ms Dye’s case and the lack of any prejudice to CommSec from allowing them:  Aon 239 CLR at 214-215 [102].  Nor was the lack of explanation for Ms Dye’s delay in raising these matters a sufficient reason, in all the circumstances, to refuse to allow these amendments.  That was why we allowed them.

Paragraphs 45(d)-(f), 75

68                  However, we were not persuaded that her Honour erred in refusing to allow amendments to add pars 45(d)-(f) and 75.  The first group (pars 45(d)-(f)) alleged that Ms Dye had acted to her detriment in accepting her contract with CommSec.  This was because she allegedly would have pursued a career over the next 25 years in one of three fields:  public relations, financial services or the law.  These paragraphs would have introduced allegations of a new and significantly greater scope than her existing claims in pars 45(a)-(c), namely that she had left her previous employment and would otherwise not have had a different career for the next four (not 25) years.

69                  Her Honour found that if pars 45(d)-(f) were permitted to be added they would require considerable investigation and expense.  There was no reason to doubt that this finding was correct.  Her Honour coupled her refusal of these amendments with a consideration of the lack of explanation for the delay in Ms Dye raising them.  Ms Dye’s counsel only pressed this latter reason as a basis for establishing an error by her Honour.  We were not satisfied that, in all the circumstances, Ms Dye had shown that these amendments were necessary and ought be allowed.

70                  The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act.  (The draft amendment referred to s 46 but that was an obvious typographical error for s 46PO and we were satisfied this could be corrected.)  She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act.  Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s 94 of the Sex Discrimination Act.  As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3).  In arriving at this conclusion her Honour applied Re East;  Ex parte Nguyen (1998) 196 CLR 354 at 362-363 [20], 366 [31]-[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

71                  The primary judge was correct to have rejected this amendment because Re East 196 CLR 354 made it unarguable.  The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act:  Re East 196 CLR at 364-365 [24]-[25].  Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act.  That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)).  Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act.  Neither the AHRC Act nor the Sex Discrimination Act create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act:  Re East 196 CLR 354.  It follows that the primary judge was correct to have rejected this proposed amendment to par 75.

Amendments to Paragraph 47 – Introduction

72                  Ms Dye alleged in par 47 that, from about May 2006, Mr Blomfield breached the alleged implied contractual term of trust and confidence by engaging in behaviours towards her amounting to sexual harassment.  She sought to amend par 47 by adding a significant number of allegations, including the following that were the subject of the appeal:

“(i)       persistently telling [Ms Dye] to “relax”;

(p)               advising [Ms Dye] that he considered [her] to be his “close” friend;

(dd)            asking [Ms Dye] if she would consider being wife to him;

(gg)            flicking rubber bands at [Ms Dye];

(hh)            calling [Ms Dye] at around 1.00 am on her mobile phone, while she was sleeping;

(ii)                leering at [Ms Dye’s] breasts;

(oo)      on 1 December 2006 directing [Ms Dye’s] manager to instruct [her] to engage him.”

Paragraphs 47(i), (p), (dd) and (ii)

73                  Her Honour disallowed the proposed amendments to pars 47(i), (p), (dd) (ii) on the ground that each was not a particular but was evidence.  In our opinion each of these matters was a specific instance of alleged sexual harassment that Ms Dye was entitled to plead.

Paragraph 47(hh)

74                  The primary judge disallowed the allegation in par 47(hh) that Mr Blomfield sexually harassed Ms Dye by phoning her at 1.00 am on her mobile phone while she was asleep because it was not a material fact.  We disagreed.  The allegation of a telephone call by a senior manager to a subordinate at 1.00 am appeared to be a material fact instancing what could be found to be an unwelcome invasion of the subordinate’s privacy, in the intimacy of her being likely to be in bed, asleep and to have been inappropriate unless the relationship was one where consent to such behaviour could be inferred.  There was a capacity for such a phone call at that time of night to have been understood to be for sexual purpose.

Paragraphs 47(gg) and (oo)

75                  Her Honour rejected the proposed amendments to add pars 47(gg) and (oo).  The primary judge found, and we agreed, that the allegation in par 47(gg) that Mr Blomfield flicked rubber bands at Ms Dye on one identified occasion in an office environment with other persons present was not reasonably capable, as particularised, of amounting to sexual harassment or “unwelcome conduct of a sexual nature”.  Her Honour also rejected the allegation in par 47(oo).  That had been based on Ms Dye’s complaint that Mr Selvarajah had told her that Mr Blomfield had complained because Ms Dye had not said hello to him when he passed her in the corridor.  Ms Dye alleged that Mr Selvarajah had told her that she had to say hello to Mr Blomfield and instructed her to go into his office to apologise.  Mr Selvarajah was a general manager of CommSec who reported to Mr Blomfield.  Her Honour found that the relevance of par 47(oo) to the complaint of sexual harassment had not been explained.  No explanation for it was given on the appeal.  Accordingly, we were not persuaded that her Honour’s discretion miscarried.

Allegations of affect on Ms Dye’s Career Path - Paragraphs 31-32

76                  Ms Dye proposed to amend that part of her claim that concerned a meeting, she alleged, had occurred on 30 June 2006 between a Mr Carroll, Mr Patterson and herself.  In her original statement of claim, Ms Dye had pleaded in par 31 that Mr Carroll’s role at the meeting was as a facilitator, which she now wished to amend to his being a witness.  She had also initially pleaded that at the meeting Mr Patterson and she had made an agreement that would be confidential and was about his alleged sexual harassment of her.  She wished to amend par 31 to add terms to the agreement that she would be reinstated in her employment with CommSec, her role, rank, salary and career path with CommSec would be unaffected by Mr Patterson’s alleged behaviour and that this behaviour would remain confidential.  Ms Dye sought to add a new par 32 that alleged CommSec took no, or no reasonable steps, to ensure that her role, rank and career path with it were not affected by Mr Patterson’s alleged sexual harassment.

77                  The primary judge accepted that the alleged meeting with Mr Carroll was part of the complaint to the Commission.  However, her Honour said that the agreement alleged was not a material fact that related to any pleaded cause of action.  Her Honour held that Ms Dye had not explained why CommSec could have had any duty to protect her role, rank and career path.  As a result, her Honour refused to grant any amendment to pars 31 and 32.

78                  In our opinion her Honour erred.  A complaint by a more junior employee against a superior and its resolution can be daunting for the inferior at the best of times, and the more so when it involves allegations of the kind Ms Dye had raised against Mr Patterson.  In addition, most people regard their sexual relationships, including any in which they have been involved involuntarily, as an intensely personal and private matter. Victims of sexual abuse very often do not complain promptly or at all, sometimes because of fear, shame or an environment in which they perceive that the ordeal to which they have been subjected will, if revealed, redound on them rather than expose the perpetrator’s wrongdoing.  Ms Dye’s amendments simply sought to plead that she wanted and had agreed, or was entitled to expect, in effect, no revelation of what had allegedly occurred to her and no adverse consequence to her career at CommSec because of her history with Mr Patterson.  These claims were arguably a foundation for her later claim for damages.  The amendments should have been granted.

CommSec’s alleged treatment of Ms Dye’s Complaint about Mr Blomfield - Paragraphs 58-67

79                  Ms Dye sought to add a series of allegations in pars 58-67.  These concerned the way in which she alleged CommSec had failed between December 2006 and December 2007 to take any or any reasonable steps to protect her role, rank, salary and career path from being adversely affected by Mr Blomfield’s alleged sexual harassment of her and to keep her complaints about him confidential.  The primary judge rejected these allegations on the same basis as the proposed amendments to pars 31 and 32.  In addition, her Honour found that the allegations mostly concerned conversations that had occurred three or four years ago, there was no explanation for the delay in raising them and if allowed they would require CommSec to incur additional costs in meeting them and could significantly extend the hearing.

80                  Each of Ms Dye’s pleaded categories of complaint was about her alleged sexual harassment by Mr Blomfield.  Each paragraph identified the complaint by dates and name of the person or persons to whom it was made.  These included a complaint to the chief executive officer of CommSec.  Most of the eight paragraphs contained a particular identifying a written record of Ms Dye either making her complaint or recording a discussion with her.  These allegations also were intended to provide part of the foundation for Ms Dye’s existing and proposed victimisation claim.  One existing aspect of that claim already had been pleaded in pars 58 and 74 of the original statement of claim.  Those paragraphs alleged that Mr Blomfield and or Mr Selvarajah had engaged in victimisation of Ms Dye because she had made complaints about the alleged behaviour of each of Mr Patterson and Mr Blomfield and she had rejected Mr Blomfield’s alleged sexual harassment of her.  The proposed amended pars 31-32, 58-67 gave considerably more precision to the bare assertions in the existing pleading that Ms Dye had made complaints about Mr Patterson and Mr Blomfield.  The evidence of those complaints was already admissible.  Her Honour did not find, and no submission was made by CommSec on appeal, that the complaints proposed to be pleaded in pars 58-67 could not have been admissible as evidence to prove the allegations in the original statement of claim.

81                  A new factual allegation permitted by an amendment may involve putting the party against whom it is made to the expense of meeting it at trial.  However, that will rarely, if ever, be a reason for refusing an amendment that enables a real issue to be heard and determined in the controversy between the parties provided that it can be done having regard to the overarching purpose in Pt VB of the Federal Court of Australia Act.  The object of inexpensive determination of disputes does not require the Court to preclude a party ventilating a real dispute at all.  Her Honour should not have considered the mere fact that CommSec would have to incur additional costs in meeting these allegations or that they could significantly extend the time in hearing the case as decisive.  This was because the allegations about Ms Dye’s complaints concerning Mr Patterson and Mr Blomfield were already part of the existing controversy and had to be decided in any event.

82                  Her Honour did not refer to any material, and the Full Court was not taken to any, to suggest that these amendments would have had any substantive impact on the length of the hearing.  We were not satisfied that they would have done so.  In any event, we were satisfied that the proposed amendments identified with greater precision an existing and real part of the controversy between the parties.  Had the application been decided by her Honour further away from the date she had fixed for hearing there is no reason to think, and CommSec did not submit, that it could not have met these amendments.  They should have been allowed.

Alleged Victimisation - Paragraphs 68, 69 and 73(e)

83                  Ms Dye had alleged in the original version of par 68 that from about November 2006 Mr Blomfield and Mr Selvarajah had engaged in behaviour in further breach of the implied contractual term of trust and confidence she had alleged formed part of her contract of employment.  She sought to amend par 68 by adding “of the Respondent” after the introductory reference to Mr Blomfield and Mr Selvarajah.  Her Honour refused that amendment saying that it was “unnecessary and unhelpful”.  We were unable to see any reason not to permit this minor change.  It was designed to connect the allegation to CommSec.  Ms Dye also sought to add the following allegations in support of the behaviour alleged in par 68, namely that Mr Blomfield and Mr Selvarajah:

“(p)      prais[ed] other employees for [Ms Dye’s] work;

(q)               instruct[ed] employees to stop working with [Ms Dye];

(s)        prevent[ed] [Ms Dye] from securing alternative employment with [CommSec], employment which was offered to her during the Victimising Behaviour and at least Mr Blomfield was aware of;

(u)        fail[ed] to recognise or reward [Ms Dye] for her contribution to the establishment of the Local Business Banking division.”

84                  Her Honour rejected each of those proposed amendments.  She said that pars 68(p) and (q) were too vague, would put CommSec to additional investigations at a later stage in the proceedings and that it might not be able to investigate them properly with the passage of time.  While there was no evidence of any prejudice to CommSec, there is no reason to doubt her Honour’s finding that these two paragraphs were vague and unparticularised.  Given the detailed amendments that Ms Dye was seeking to make, she ought to have identified with some particularity the case she was seeking to make.  We were not persuaded that her Honour erred in rejecting these amendments;  indeed she was correct to have done so.

85                  Her Honour rejected the amendment to add par 68(s) because she found that Ms Dye had not given an explanation and had failed to show that CommSec would not be prejudiced by the delay.  The allegation was straightforward and simple to meet:  Ms Dye had claimed that CommSec offered her alternate employment and Mr Blomfield prevented her from securing it.  He was likely to be called in any event to deal with the allegations of sexual harassment.  CommSec did not suggest any prejudice if the allegation were made.  The new allegation was made in the context of the existing pleading in par 68 that canvassed changes to Ms Dye’s duties and her treatment as an employee.  This amendment was reasonably arguable in support of her claim of breach of contract.  We considered that in all the circumstances it ought be permitted to be made.

86                  Last, in her supplementary reasons given on 23 August 2010, her Honour rejected the proposed par 68(u) because she had not been able to find it on the page of Ms Dye’s statement to the Commission that her counsel had identified in argument.  Ms Dye’s counsel’s submissions on appeal admitted that some page numbers given to her Honour were incorrect.  However, those submissions identified a number of passages in her statement to the Commission that supported this allegation.  CommSec argued that the primary judge was entitled to refuse the amendment on the basis of what was put to her Honour, but it did not suggest that the new references failed to support the claim.  Given that the pleading is to be recast and no prejudice would be suffered by allowing this relatively minor amendment, we considered that it ought be allowed.

Paragraph 69

87                  Ms Dye sought to add a new par 69 that alleged that, from about June 2006, CommSec’s human resources department, in substance, first, had not protected Ms Dye from the conduct she alleged had amounted to victimisation, second, had not protected her career path in light of her allegations about Mr Patterson and Mr Blomfield sexually harassing her, third, had not investigated her complaints properly and had failed to keep them confidential.  Her Honour referred to this as a catalogue of new complaints that would expand the hearing.

88                  However, the proposed par 69 collected a number of allegations already made earlier in the pleading as supporting a general complaint against CommSec’s human resources department.  For example, proposed par 69(h) asserted that the department had failed to investigate the behaviour of Mr Blomfield and Mr Selvarahah that Ms Dye alleged amounted to victimisation.  There was one obvious infelicity in the introduction to par 69.  This was that it alleged that the conduct complained of had begun in about June 2006 but amounted to a breach of a contract Ms Dye alleged had only been made in October 2006.  Her counsel sought to correct this incoherence in the date of the contract.  We considered that Ms Dye should be allowed to rely on par 69 but to identify the actual contract on which she relied.

Paragraph 73(e)

89                  Ms Dye wished to allege in par 73(e) that she had been victimised because she had relied on the dispute resolution procedure provided in her contract.  The primary judge held that no claim of victimisation within the meaning of s 94 of the Sex Discrimination Act could be made out on this allegation.

90                  Under s 94(2)(g) a person is taken to have committed an act of victimisation against another if the former subjects or threatens to subject the victim to any detriment on the ground that the victim:

“(g)      has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II.”

91                  Part II of the Sex Discrimination Act makes sexual harassment unlawful.  In addition, s 94(2) provides that a person would be deemed to be have engaged in victimisation if that person believed that the alleged victim had made, or proposed to make, an allegation of the kind referred to in par 94(2)(g).  Ms Dye had already pleaded that she had invoked the dispute resolution provisions in her contract in respect of her alleged sexual harassment by each of Mr Patterson and Mr Blomfield.  She alleged that she had been victimised because she had sought to bring her grievances up in accordance with her agreement with her employer.  The primary judge did not explain why, if Ms Dye established the allegation proposed in par 73(e), she would not have proved that she had suffered victimisation.  In our opinion this allegation was clearly arguable and did not involve any prejudice to CommSec or additional evidence.  It should have been granted.

Injurious Falsehood

92                  The primary judge refused to allow an amendment, by the addition of pars 91-101, to allege injurious or malicious falsehoods.  Ms Dye identified, in particulars to the proposed pars 91-101, a number of communications by CommSec or its employees or agents to third parties, including the Commission, news media journalists, publications in the print and electronic media.  In essence, Ms Dye wished to allege in proposed pars 91-101 that CommSec had engaged in a campaign to persuade the media from about May 2007, in substance, to:

·               denigrate her performance as an employee;

·               assert that she had made false allegations of sexual harassment about Mr Patterson and Mr Blomfield and about her having been victimised;

·               assert that she had only raised those false allegations in February 2008;

·               assert that she had chosen to fight the issues in the media;

·               portray her allegations as scurrilous, and as besmirching and defaming Mr Patterson and Mr Blomfield;

·               suggest that she had worn a fur highlighted G-string showing above her skirt to a company event (par 92).

93                  In addition, Ms Dye also proposed to plead in pars 96 and 97 that CommSec had been responsible for publication of injurious falsehoods concerning Ms Dye arising out of Mr Blomfield’s allegations, evidence, as well as his counsel’s cross-examination of her in his defamation proceedings in the Supreme Court of New South Wales and the media reporting of that trial.  She alleged that the publication in or by those proceedings of her allegations against Mr Blomfield of her sexual harassment and victimisation amounted to injurious falsehoods.  Her Honour rejected pars 96 and 97 on the basis that they were an abuse of process and sought to impugn the principle that parties and witnesses in Court proceedings were protected by absolute privilege for what they said in the course of the proceedings, even if their evidence were given maliciously.

94                  Her Honour was correct to have rejected the amendments proposed in pars 96 and 97.  Those claims were hopeless:  Cabassi v Vila (1940) 64 CLR 130;  D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.  During the hearing in the Full Court counsel for Ms Dye conceded that pars 96 and 97 could not be pressed.

95                  Her Honour rejected the amendments proposed in pars 91-95, 99-101 (there was no par 98) for the following reasons:

(1)        the alleged injurious falsehoods and the role of CommSec in the publication had not been pleaded with precision;

(2)        the actual damage relied on as material facts essential to the causes of action injurious falsehood had not been pleaded with precision;

(3)        the pleading of malice was “wholly unsatisfactory” and there was no evidence to show that Ms Dye could prove malice;

(4)        these claims should not be joined to the proceedings but were more appropriate to be litigated in Ms Dye’s defamation proceedings in the Supreme Court against the Bank, CommSec’s parent company;

(5)        Ms Dye could have sued on some of the alleged injurious falsehoods earlier and had not explained her delay.

96                  The primary judge was correct to have concluded that the injurious falsehood claims were not pleaded with precision.  Indeed, the actual publications were not pleaded at all.  Rather, the draft asserted that a number of different publications conveyed just one rolled up falsehood.  Instead of pleading that particular words were published, the pleader asserted, for example:

“92       [CommSec’s] falsehoods include but are not limited to stating:

            …

(e)        that [Ms Dye] first notified [CommSec] of the Blomfield Behaviour in January 2008, which is a false assertion and the falsehood was published with malice:

Particulars

(i)         Comment to Daily Telegraph as published 16 April 2008, Heath Aston;  and

(ii)        Comment to Daily Telegraph as published 17 April 2008, Heath Aston;

and the statement is false because [Ms Dye] raised the conduct as alleged to the appropriate governance channel within [CommSec] in 2006 and 2007 prior to seeking relief externally in 2008;”

97                  This plea relied on at least two different publications to Mr Aston on 16 and 17 April 2008 and two newspaper republications of these.  None of those publications was properly pleaded.  For example, the pleading should have set out the relevant words complained of in an email sent on 15 April 2008 to Mr Aston at The Daily Telegraph by, Bryan Fitzgerald, CommSec’s general manager media and issues management, marketing and communications.  It should then have pleaded either the words in any newspaper article which republished the effect of any alleged injurious falsehood or that the article itself republished the words complained of from Mr Fitzgerald’s email.  Following that, it should have pleaded the material facts going to falsify the matter complained of:  see e.g. Bullen & Leake & Jacob’s:  Precedents of Pleadings (15^th ed) Vol 1 [29-F1];  (12^th ed) [296] at p 547;  Gatley on Libel and Slander (11^th ed) A1.16 at pp 1336-1337.

98                  Until earlier in 2010, that email to Mr Aston, and a number of other similar communications particularised in several allegations in par 92, had been the subject of claims by CommSec for privilege from their production for inspection as part of its discovery.  Ms Dye was not aware of those publications by CommSec to journalists and media outlets until its claims for privilege from producing them for inspection were determined or waived at various times since January 2010.

99                  A number of the communications by CommSec particularised in par 92 were known to Ms Dye before 2010, some as early as 2007.  These had not been the subject of claims of privilege and Ms Dye did not explain why she had not asserted any claim for injurious falsehood in respect of them at an earlier stage.  We were not persuaded that her Honour erred in the exercise of her discretion to refuse the amendments to plead claims for injurious falsehood based on the materials that Ms Dye had access to before January 2010.

100               However, Ms Dye could not be criticised for failing to plead earlier claims that she based on documents over which CommSec had maintained privilege until January 2010 or later.  Those documents constituted a considerable number of the allegedly injurious falsehoods about which she sought to complain.  Ms Dye gave evidence that she had been unaware of the source of material appearing in newspapers until January 2010.  In addition, during argument on 30 April 2010, Ms Dye’s counsel submitted that these documents had only become known to Ms Dye in January 2010.   Her Honour was also told then that  Ms Dye’s defamation proceedings against the Bank had been fixed for hearing in the Supreme Court in November 2010.

101               Her Honour criticised Ms Dye for not mentioning her defamation proceedings in her affidavit in support of her motion seeking leave to amend or explaining why she had not sought to sue for injurious falsehood in those proceedings.  Neither criticism had been put to her in cross-examination.  Indeed, as her Honour recognised, CommSec was not even a party to the defamation proceedings.

102               Her Honour also found that the proceedings before her were concerned with vindicating very different rights and interests.  The primary judge then said:

“271          In addition, the respondent’s late discovery of certain documents does not provide a satisfactory explanation for the delay in applying for leave to make these amendments.   The applicant’s statement of claim in the Supreme Court proceeding was filed on 15 April last year, two months before the principal proceeding in this case was first set down for trial, and more than nine months before the respondent was notified of the application.    Not only that, but the applicant conceded in cross-examination that she was aware of the press articles on or around the dates of their publication (mostly in 2008).   She must then be taken to have known of sufficient information to enable her to commence an action for injurious falsehood.  The fact that she might later have become aware of additional false statements might have justified an application to amend based on those statements but it does not explain why she did not move on the basis of the information she had at the time she chose to sue for defamation.  The applicant did not take the Court to any additional material that was discovered that, for example, might have supplied evidence to support malice, which she does not have to prove in the defamation suit.  As I mentioned earlier, for malice she appears to be relying on inferences to be drawn from the statements.”   (emphasis added)

103               We respectfully disagree with her Honour’s finding that the injurious falsehood counts should have been joined to the Supreme Court defamation proceedings.  First, the defendant in those proceedings was the Bank.  CommSec was not a party.  Secondly, on 8 April 2010 those proceedings had been fixed for trial by jury by McClellan CJ at CL to commence in November 2010.  Her Honour was informed of this on 30 April 2010.  The application to make the amendment adding pars 91-101 had been given to CommSec on 15 February 2010.  Thus, an amendment by Ms Dye in the defamation proceedings to join a new party and new causes of action after her Honour’s reasons of 9 July 2010 were published would be highly unlikely to have any prospect of success.  Unfortunately, her Honour did not advert to this difficulty.

104               Her Honour also erred in finding that Ms Dye should be taken to have known of sufficient information to enable her to commence proceedings for injurious falsehood when she saw the newspaper articles in 2008.  Ms Dye could not have established who was the source of the hearsay in the articles.  Further, CommSec maintained claims for privilege over the material that established it was the source.  In addition, journalists sometimes will not name their sources:  cp John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346.  Ms Dye was entitled to amend in February 2010 after she obtained discovery of the source of the emails in the previous month.

105               There is no reason to doubt the correctness of the primary judge’s reasons for rejecting the proposed amendments to pars 91-101 based on their lack of precision.  First, the rolled up pleading of falsehoods without setting out the words in each publication that conveyed the alleged falsehood was embarrassing.  Second, the mere fact that persons employed by CommSec or its parent, the Bank, made the publications did not convert their conduct to that of CommSec.  The pleading did not identify the material facts alleged to make CommSec the publisher or vicariously liable for the publications.  However, these were matters of form and not substance.  They were capable of rectification by being properly repleaded.

106               Her Honour did not explain why she found that actual damage had not been pleaded with sufficient precision, saying:

“… actual damage is not pleaded as a material fact – or at least not with the requisite degree of precision – a serious omission in a case where the tort is not complete without it.”

Ms Dye proposed to allege in par 100 that she had incurred, and would continue to incur, loss from the publications.  In par 116 she proposed to plead that she had attempted to mitigate by seeking alternative employment for three short periods.  The inference can readily be drawn that Ms Dye could be seen as difficult to employ, if the gravamen of CommSec’s alleged injurious falsehoods about her were known to potential employers.  No doubt better particulars could have been provided by Ms Dye.  But, the proposed pleading was sufficient for the reasons stated by Bowen LJ giving the judgment of himself, Lord Esher MR and Fry LJ in the classic case on damages in injurious falsehood:  Ratcliffe v Evans [1892] 2 QB 524 at 532-534;  Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404 [52], 405-406 [57] per Gummow J, 423 [109] per Kirby J.  His Lordship said (Ratcliffe [1892] 2 QB at 532-533):

“As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry. The rule to be laid down with regard to malicious falsehoods affecting property or trade is only an instance of the doctrines of good sense applicable to all that branch of actions on the case to which the class under discussion belongs.”

107               Lord Justice Bowen explained that a falsehood openly disseminated in the press was likely to have been read and probably acted on, by people unknown to the plaintiff.  That made proof of a general loss of business admissible, since it would be impossible to give more detail.  Here, it appears that Ms Dye was not employed after ceasing her service with CommSec except for three brief periods.

108               The primary judge was very critical of the proposed pleading in par 95 of malice and the ability of Ms Dye to make it good.  That read:

“Each injurious falsehood was actuated by malice on the part of the Respondent, its servants, officers and/or agents, in that the dominant motive for each statement was an improper purpose or purposes, including the motive of harming the Applicant.”

109               Her Honour was correct to criticise the embarrassing words “or purposes, including” in the proposed par 95.  However, par 95 correctly pleaded malice as being the dominant motive of an intention to injure Ms Dye.  That was a proper allegation sufficient to support the plea of malice:  cf  Roberts v Bass (2002) 212 CLR 1 at 37-41 [91]-[104] per Gaudron, McHugh and Gummow JJ, 65 [179] per Kirby J.  If the other deficiencies in the draft pleading to which we have referred above were rectified, it would be open to infer that on Ms Dye’s case, CommSec or those for whom it was vicariously responsible, knew that what it published about her was false or was reckless as to its truth or falsity and published with the intention of injuring her reliability and credibility.  Proper particulars of malice would also have to be provided.

110               Her Honour asserted that the plea was improper.  Her Honour said that “[i]t fails to identify the actual harm caused to [Ms Dye]”.  A plea of malice does not need to plead actual harm - it is, relevantly, a plea that the dominant motive of the defendant in publishing was actuated by the intention to injure.

111               The evidence in the recently discovered emails showed that CommSec had taken up the cause of defending Mr Patterson and Mr Blomfield against what the emails described as her “unsubstantiated” claims.  Her Honour said that there was nothing in this material to suggest malice.  The question of what Ms Dye would establish as proof at a trial is different from the present issue.  The emails may or may not establish malice when considered, with other evidence of what the persons in CommSec responsible for the publication and for the decision to dismiss Ms Dye’s claims as unsubstantiated, knew, believed and intended by the publications.  As Gaudron, McHugh and Gummow JJ said in Roberts 212 CLR at 39 [98]:

“When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice. A deliberate defamatory falsehood “could not have been for a purpose warranted by any privilege; and hence it is unnecessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to be wilfully false” (Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 329 per Jordan CJ, Davidson and Halse Rogers JJ agreeing). When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice.”  (emphasis added)

112               The evaluation of the state of mind, and so the dominant motive, of the relevant person responsible in CommSec for each publication will be a matter for evidence at the trial.  But, the ascertainment of whether Ms Dye’s complaints were substantiated and, if so, her vindication, can be seen as bound up with her claim that CommSec published injurious falsehoods about her.  Whether it did so was a triable issue and sufficiently connected to the proceedings to justify the amendment.  CommSec will be able to seek particulars of malice once the repleading of the claim occurs.

Breach of Privacy

113               The primary judge refused leave to Ms Dye to amend by adding pars 102-114.  These alleged a claim for breach of privacy or an obligation of confidence by CommSec.  These amendments appeared to be based on Ms Dye’s assertion that a term of her contract, or CommSec’s diversity or equal opportunity policies, prohibited disclosure of private information about her in its internal diary notes and other documents.  Her Honour, correctly, noted that no particulars or material facts were alleged as to what was disclosed without Ms Dye’s consent, or to whom and in what circumstances those disclosures were made.  As her Honour found, this claim was based on a different substratum of facts from the sexual harassment, victimisation and injurious falsehood claims.  It sought to introduce a significant, new and distinct legal and factual dispute into already complex litigation.  That new dispute was not properly pleaded or particularised and appeared to be raising a significantly different controversy to the existing one.

114               We were not persuaded that Ms Dye had established that the primary judge should have granted leave to make these amendments, with or without further refinement or particularisation.  In our opinion, Ms Dye suffered no injustice by the refusal of leave to add pars 102-114.

Suppression Order

115               At the beginning of the hearing of the appeal, the Full Court made an order suppressing the name of a female referred to in Ms Dye’s police statement for the reasons then given:  Dye v Commonwealth Securities Ltd [2010] FCAFC 115.  This was because there was a possibility that she may have been the victim of a sexual offence and the Court was not then in a position to assess whether there was any reason why she was not entitled to have her identity suppressed by force of what it understood were provisions of New South Wales legislation.  The Court required counsel for CommSec to identify the applicable legislation.

116               Subsequently it emerged that Ms Dye had given evidence that the police had suspended their enquiries into the subject matter of her police statement.  There was no evidence that any charge has been laid against the person alleged to have sexually assaulted the female whose identity was the subject of the order made on 1 September 2010.

117               The only provision to which the Full Court was taken by CommSec to support the order was s 578A(2) of the Crimes Act 1900 (NSW).  That provides:

“A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Penalty:  In the case of an individual – 50 penalty units or imprisonment for 6 months, or both;  in the case of a corporation – 500 penalty units.”

118               There is no evidence before the Court of criminal proceedings of any kind, and none in respect of prescribed sexual offence proceedings within the meaning of s 578A(2) in respect of the female whose name was suppressed.

119               CommSec made lengthy written submissions, with leave, that the suppression order should either not be vacated or a pseudonym order should be substituted.  It also sought an order preventing inspection of the file in Full Court proceedings.

120               The vice of CommSec’s submissions is their failure to identify a jurisdictional foundation for how any such order falls within the power of the Court in the circumstances.  They referred to the High Court’s decision in Hogan v Australian Crime Commission (2010) 267 ALR 12 asserting that s 50 of the Federal Court of Australia Act requires the Court to determine that an order to suppress a name or evidence must be necessary with respect to the administration of justice and “… is not concerned with trivialities”.  CommSec asserted that the allegations were “scandalous, untested … and of a deeply personal and private nature”.  That was the very argument rejected in Scott v Scott [1913] AC 417;  Dickason 17 CLR 50;  R v Hamilton (1930) 30 SR (NSW) 277;  Llewellyn v Nine Network Australia Pty Ltd (2006) 159 FCR 293 at 298-299 [28], 300 [35]-[37] per Rares J;  see too McPherson v McPherson [1936] AC 177.

121               The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny.  That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them.  Administrative power can be, and frequently is, exercised in secret.  Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice.

122               CommSec’s pejorative assertion that the allegation concerning the other female in Ms Dye’s police statement was “scandalous”, was itself not justified by any evidence.  The allegation by Ms Dye appeared to be of a serious incident that she related to her own experience.  But as Viscount Haldane LC said in Scott [1913] AC at 438:

“The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.”

123               In Hogan 267 ALR  at 19 [31], French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:

“It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.  (A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635;  [2007] NSWCCA 307 at [31]).”

124               CommSec did not identify, or lead, any evidence to suggest that it is necessary to prevent prejudice to the administration of justice to make a suppression order.  Accordingly, there is no justification for continuing the order made on 1 September 2010:  Hogan 267 ALR at 19 [30]-[33].  The existing order should be vacated.

Associate:                                                        

Dated:  14 September 2010