FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2010] FCA 720
FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2010] FCA 720
CORRIGENDUM
1. In paragraph 59, delete the words “add to” in the third sentence and substitute for them the word “replace”, and after the words “Messrs Blomfield and Selvarajah”, also in the third sentence, add the words “with a general allegation that the respondent was vicariously liable for the acts of”.
2. In paragraph 61, after the words “seeks to” in the second sentence add the words “restore the reference to Mr Blomfield and Mr Selvarajah and to”.
3. In paragraph 65, after the word “amendment” in the first sentence add the words “in so far as it restores the reference to Messrs Blomfield and Selvarajah”.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
Dated: 23 August 2010
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | COMMONWEALTH SECURITIES LIMITED Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The parties bring in short minutes setting out the orders reflected in these reasons within seven days.
2. The applicant pay the respondent’s costs of the motion.
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.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 1165 of 2008 |
BETWEEN: | vivienne Louise dye Applicant |
AND: | COMMONWEALTH SECURITIES LIMITED Respondent |
JUDGE: | KATZMANN J |
DATE: | 9 JULY 2010 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
Table of contents
Amending a pleading – the principles 5
Category 1 documents: amendments said to be by way of clarification 9
Category 2 & 3 amendments: further particulars and sexual assault 23
Category 4: the new causes of action 49
The claim for injurious falsehood 52
Category 5: Amendment to damages claims 92
Category 6: Uncontentious amendments 92
1 The principal proceeding arises from a complaint of sexual harassment, sex discrimination, disability discrimination and victimisation that the applicant originally lodged with the Australian Human Rights Commission, then known as the Human Rights and Equal Opportunities Commission (HREOC), on 2 January 2008.
2 This is an application for leave to amend the statement of claim commenced by notice of motion filed in court on 11 March 2010, supported by an affidavit sworn by the applicant herself, on 15 February 2010, and filed with the motion. The amendments are vast and numerous. They significantly expand the scope of the current proceeding. For the most part they are opposed for one or more of the following reasons:
(a) the application has been made too late;
(b) the reasons given for the delay are inadequate;
(c) they raise wholly new claims not previously agitated because of a deliberate tactical decision not to do so or which it is inconvenient to include in these proceedings;
(d) in some cases they run foul of the statutory bar set out in s 46PO(3) of the Australian Human Rights Commission Act, formerly the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (AHRC Act); and
(e) the pleading is inadequate and embarrassing.
3 The proceeding came to this Court via an application filed on 24 July 2008 after a delegate of the President of HREOC terminated the complaint under s 46PH(1)(i) of the AHRC Act by notice dated 26 June 2008 because she was satisfied there was no reasonable prospect of the matter settling by conciliation.
4 In her application the applicant made claims of:
(a) Misleading and deceptive conduct including misleading conduct in relation to employment, relying on ss 52 and 53B of the Trade Practices Act 1974 (Cth) and ss 42 and 46 of the Fair Trading Act 1987 (NSW);
(b) Breaches of contract;
(c) Breaches of the Sex Discrimination Act 1984 (Cth) (SDA); and
(d) Breaches of the Disability Discrimination Act 1992 (Cth) (DDA).
5 The applicant was an employee of the respondent, Commonwealth Securities Ltd (known as CommSec), a wholly owned subsidiary of the Commonwealth Bank of Australia (CBA). She commenced employment on 7 March 2005 and ceased on 9 November 2007 when, according to the respondent, she was made redundant. She was first employed as a Business Relations Manager in the Finance and Risk Management section of Premium Banking Services. On 16 May 2006 she was transferred to Business Development Administration where she came under the supervision of [X]. From a date in November the same year she was transferred to Local Business Banking, reporting to Anand (Arnie) Selvarajah. Michael Blomfield was Executive General Manager of that unit. In this proceeding the applicant alleges that [X] and Mr Blomfield sexually harassed and discriminated against her on the ground of her sex and that all three men victimized her after she made a complaint. She also claims that her employment was terminated because she suffered from a disability within the meaning of the DDA and was treated less favourably than the respondent would have treated someone without her disability. (The nature of the disability was not particularised in the original statement of claim or in the proposed amended version.) In the alternative, she contends that her employment was terminated because she had rejected the advances of Messrs [X] and Blomfield or that it was an act of victimization in retaliation for her complaint about their behaviour.
6 Within two months of her employment coming to an end the applicant complained to HREOC.
7 On 2 January 2008 the applicant lodged her complaint with HREOC against both the CBA and the respondent (HREOC complaint). The complaint was supported by a statement 181 pages in length (HREOC statement) with a 24 page addendum to her statement. On 11 February 2008 the applicant (through an industrial advocate) provided additional information to HREOC supplementing her original statement.
8 On 14 April 2008 she informed HREOC (again through the industrial advocate) that she wished to add [X], Michael Blomfield, Arnie Selvarajah and Michael Carroll (an employee of the CBA) as respondents to her complaint and listed in dot point form the nature of her complaints against them. On 24 April 2008 a delegate of the President of HREOC granted her leave pursuant to ss 46PA and 46PF of the AHRC Act to amend the complaint to include the additional information and allegations and to add the additional respondents.
9 In her complaint the applicant alleged that [X] and Mr Blomfield had made unwelcome sexual advances to her. She also alleged that [X] had discriminated against her and victimized her by unlawfully terminating her employment because she refused to have sex with him. She made similar allegations against Mr Blomfield. She also alleged that Mr Blomfield and Mr Selvarajah had threatened to dismiss her for performance and behavioural issues, which, she maintained, were baseless.
10 The respondent denies all the allegations of impropriety.
11 The proceeding was originally fixed for trial in June last year when it was listed for seven days in September to October of the same year. The hearing dates were vacated, principally because the applicant had been subpoenaed to give evidence for News Limited in defamation proceedings brought again the company by Mr Blomfield, but also because the respondent had not completed its discovery. On 3 December 2009 the proceeding was again listed for hearing, this time in two blocks, from 1 March 2010 for nearly three weeks, and then for two weeks in July. On 17 February 2010 the March hearing dates were vacated. Although on this occasion the application was made by the respondent, it was brought about because of default on the part of the applicant to comply with the Court’s timetable and the applicant’s desire to amend the statement of claim.
12 The applicant was first ordered to file affidavits from all witnesses by 4pm on 22 May last year. That direction was made by Tamberlin J on 6 February 2009. The applicant failed to comply with the direction. On 3 December 2009 Moore J, who took over the management of the proceeding after Tamberlin J’s retirement, and who fixed the trial dates, made further directions for the filing of affidavit evidence by 4pm on 11 December 2009. The applicant did not comply with these directions either. Still another direction was made on 18 December 2009 that the applicant file and serve evidence by 22 January 2010, backed by a further order that the applicant’s case would proceed only on the basis of evidence filed by that deadline. That direction was also apparently ignored. When the applicant did file an affidavit, so much of it failed to comply with the rules of evidence and of the Court that, rather than waste more court time dealing with objections and requiring the applicant to rewrite the affidavit, I ordered that all the lay evidence in the trial be given orally.
13 During case conferences in October last year counsel who then appeared for the applicant confirmed that the scope of the claim would be limited to the statement of claim and the particulars. The present application demonstrates just how far the applicant has departed from this position.
14 The respondent was first notified of the applicant’s intention to amend her statement of claim on 22 January 2010. At that time it was informed that it would include, at least, the addition of two new causes of action: injurious falsehood and breach of privacy. On 3 February, the respondent received a letter from Turner Freeman, the applicant’s current solicitors, enclosing an unfiled notice of appearance and a draft amended statement of claim. On 15 February 2010 – more than three weeks after the respondent was first notified of the applicant’s intention to amend – a copy of the proposed amended statement of claim was served, which went beyond the scope of the version provided to the respondent on 3 February.
Amending a pleading – the principles
15 A defence was filed in this matter on 23 September 2008. There is no right to amend a pleading after the pleadings are closed. Leave is required. The power to grant leave is subject to O 13 r 2 of the Federal Court Rules (Rules) and s 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
16 Order 13 r 2 relevantly reads:
(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
…
(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9) Paragraph (7)(b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
17 Section 37N of the FCA Act obliges the parties to a civil proceeding before the Court to conduct it in a way that is consistent with the overarching purpose of the civil practice and procedure provisions of the FCA Act and Rules (the overarching purpose). That purpose is described in s 37M:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
18 Subsection (3) stipulates that the civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose. The “civil practice and procedure provisions” are defined in subs (4) as the Rules and any other provision made by or under the FCA Act or any other Act with respect to the practice and procedure of the Court.
19 The applicant has conducted this litigation with little or no regard to the overarching purpose.
20 In Bi v Mourad [2010] NSWCA 17 the NSW Court of Appeal refused leave to appeal from a decision of a Judicial Registrar of the District Court dismissing proceedings because of the plaintiffs’ late reformulation of their case and failure to comply with a deadline for filing an amended (and “quite defective”) pleading. Allsop P observed at [47]:
Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.
21 Although these remarks were made in the context of the Civil Procedure Act 2005 (NSW), they apply equally in this Court. They have recently been reinforced by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon). In Aon the plaintiff sought an adjournment and leave to amend its statement of claim to add a substantial new claim after the trial had commenced. Aon was concerned with the ACT civil procedure rules but this Court’s civil procedure regime is not relevantly different.
22 The plurality in Aon emphasised (at [98]) that, although a just resolution of proceedings remained the paramount purpose of the relevant rule of court stating the objectives of case management [cf. Part VB of the FCA], what is just
[was] to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
23 Moreover, their Honours went on to say (at [103]), “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 Mr King 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.
25 The applicant invokes the discretion of the Court. It is a discretion to grant, not to refuse, the application. Accordingly, she bears the onus of satisfying the Court that grounds exist for exercising the discretion in her favour: cf. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor) at 544 per Dawson J, 547 per Toohey and Gummow JJ and 551 per McHugh J. There is no entitlement to the orders sought. The respondent does not have to prove anything.
26 The applicant sorted the proposed amendments into six categories. The descriptions are the applicant’s. The categories are:
(a) Category 1: Amendments by way of clarification (originally also said to arise from the defence, a contention abandoned on the second day of hearing);
(b) Category 2: Amendments by way of further particulars;
(c) Category 3: Sexual assault;
(d) Category 4: Injurious falsehood and breach of privacy;
(e) Category 5: Amendment to damages claims;
(f) Category 6: Amendments which are not opposed.
27 The applicant submits that if the application were allowed it would not be inconsistent with the principles of case management, nor would it disadvantage other litigants, no substantial delay would arise and costs would not be wasted. All that would happen is the respondent would have to put on an amended defence. Whilst this is likely in the case of the uncontentious amendments in category 6 and possibly so with respect to some of the amendments in certain other categories, it is most definitely not the case with the category 3 and 4 amendments.
Category 1 documents: amendments said to be by way of clarification
28 The applicant relies on O 13 r 2(2) of the Federal Court Rules. She asserts that the proposed amendments are sought to ensure that all issues between the parties are accurately pleaded and do not substantially alter the case the respondent is called upon to meet. The respondent, on the other hand, does not accept that the amendments merely clarify the existing pleading.
29 I will deal with the proposed amendments seriatim. The amendments are struck through (deletions) or underlined (additions).
30 The first is to paragraph 12. Paragraph 12 reads:
In or about September 2005, the Applicant was promoted to the position of Marketing Manager, which was at the level of Executive Manager:
Particulars
(i) Discussion Communications between the Applicant and Ms Nicola Bradbury, General Manager Business Relations for the Respondent, in or about September 2005 on before and after 4 March 2005; and
(ii) Communications between the Applicant and Ms Bradbury in or about September 2005.
31 Order 11 r 2(a) provides that subject to the Rules:
a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved.
32 This is such a basic principle it should not be necessary to refer to it. But this pleading pays no regard to it.
33 The particulars, with or without the amendments, add nothing to the contention in paragraph 12. In any event, the fact of the applicant’s promotion in or about September 2005 – like many of the allegations in the statement of claim – is not a material fact. A fact is material if it is essential to the cause of action, not merely because it might be relevant to it. The expression refers to the fact or combination of facts that give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J. Further, material facts are supposed to be stated in such a way that a defendant can understand how they are material to a cause of action: Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 at [20]. This pleading does nothing of the kind.
34 Order 12 r 1 commands a party pleading to state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him. The function of particulars is to control the generality of the pleadings and restrict the scope of the evidence that can be led: Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 at 365.
35 These particulars do neither. They do no more than flag the kind of evidence that might be called to support a collateral fact. They raise more questions than they answer. Because of their imprecision they tease the respondent to request further and better particulars.
36 In R v The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 Isaacs J said:
I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms “surprise”, but he is not entitled to be told the mode by which the case is to be proved against him.
37 In the circumstances, I am disposed to strike out the whole of paragraph 12. As I am not invited to do so, I merely refuse leave to amend.
38 The second amendment in this category is to paragraph 14:
On or about 16 May 2006, the Applicant was offered and on or about 1 June 2006, she accepted employment with the Respondent in the position of Business Analyst at the level of Executive Manager (“May 2006 Contract”). She did not receive a written contract or Performance Planning documentation setting out the terms and conditions governing her employment under the May 2006 Contract:
A. The May 2006 contract took effect as a variation of the March 2005 contract or was a new contract on similar terms:
Particulars
(i) Communications between the Applicant and [X] on or about 24 April, 1 and 16 May, and 1 June 2006; and
(ii) Document titled “Role Summary” issued to the Applicant on 1 June 2006.
39 I am at a loss to understand the relevance of the assertion that the applicant did not receive a written contract or performance planning documentation (whatever that means). The so-called particulars do not serve the purpose of particulars. I therefore disallow the proposed amendments.
40 The next proposed amendment is to paragraph 15 to add to the specified express terms of the May 2006 contract a term that the applicant’s annual remuneration would include
(d) education/training costs paid in the amount of $50,000 for the degree of Masters of Law and Legal Practise [sic] at the University of Technology, Sydney:
Particulars
(i) Communications particularised at paragraph 12 above.
41 The applicant did not press the addition of a further particular.
42 No explanation has been offered for the delay in pleading this additional allegation. The communications are said to be particularised at paragraph 12. Yet, as I have already observed, what was particularised in paragraph 12 did not amount to particulars. In the circumstances, I refuse the application.
43 The next amendment is to paragraph 17:
It was an implied term of the May 2006 Contract that neither party would engage in conduct designed, or which is reasonably likely, to seriously damage, or destroy, the relationship of trust and confidence between the parties and/or that there was an implied term of good faith and/or cooperation between the parties in relation in relation to the performance of the contract (“the implied term of trust and confidence”).
Particulars
Implied by law.
44 The respondent opposes the application, arguing:
This falls into the class of claim that would have to be struck out because the nature of the pleading, the complete lack of particulars about the context in which this clause is said or term is said to arise and the fact that the courts have consistently said that in Australian law the concept of implied terms of this kind into a contract of employment is not generally recognised.
45 In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 a Full Bench of the Industrial Relations Court of Australia (Wilcox CJ, Marshall and North JJ) considered (albeit obiter) that the law imported into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties without reasonable cause.
46 There is no doubt that in England there is a good deal of authority to support an implied term of mutual trust and confidence, starting with the decision of the English Employment Appeal Tribunal in Courtaulds Northern Textiles v Andrew [1979] IRLR 84, and it has found favour in the House of Lords. See, for example, Malik v Bank of Credit and Commerce International S.A. (in compulsory liquidation); Mahmud v Bank of Credit and Commerce International S.A. (in compulsory liquidation) [1998] AC 20 and Eastwood v Magnox Electric plc; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503 (Eastwood) where at [5] Lord Nicholls of Birkenhead wrote:
[5] It is a well established principle that a servant owes a duty of loyalty and faithfulness to his master. Thus, in a modern context an employee will be in breach of contract if he “works to rule” in such a way as to frustrate the commercial objective of his contract of employment: Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455. From here it was a short step to recognise that both parties to an employment contract owe a duty to conduct themselves in a way which will enable the contract to be performed. The developed formulation of this duty became, so far as the employer is concerned, that an employer will not, without reasonable and proper cause, conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. This formulation of a wide-ranging “trust and confidence” implied term emerged in the late 1970s and the 1980s in cases such as Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, affirmed [1982] ICR 693.
47 This analysis supports the current pleading but provides no justification for the proposed amendment. It is well accepted that an employee has a duty of good faith and fidelity towards her or his employer. The question is whether an employer owes a corresponding duty to an employee. In Eastwood, Lord Nicholls appeared to accept that there was an obligation on an employer to act “responsibly and in good faith” as a feature of the implied term of mutual trust and confidence. At [11] his Lordship said:
The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith.
48 In Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198 Rothman J in the New South Wales Supreme Court held (at [134]) that under the common law of Australia there were implied in a contract of employment two implied terms that:
The employer would act in good faith to the employee in and about the administration of the contract; and
The employer would not conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the parties (ultimately repleaded as a duty on the employer not to conduct itself in such a manner without reasonable and probable cause).
49 Russell has been heralded as the first case in which an Australian judge exercising common law jurisdiction has categorically accepted a duty of good faith in employment contracts. See Joellen Riley, “The Boundaries of Mutual Trust and Good Faith – Case Note; Russell v Trustees of the Roman Catholic Church for Archdiocese of Sydney” (2009) 22 Australian Journal of Labour Law 73. On appeal, where the issue was raised by a notice of contention, the NSW Court of Appeal also recognised the existence of authority making it at least arguable that there is an implied term in a contract of employment binding on an employer that an employer owes a duty of good faith towards her or his employees: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; (2008) 72 NSWLR 559 (Russell), although no member of the Court found it necessary to decide the question and all refrained from doing so.
50 In the circumstances the respondent’s submission that an amendment in the proposed terms would have to be struck out fails. Although some single instance Australian decisions have expressed doubt about the existence of such an implied term (whether as presently pleaded or proposed), it is unnecessary to refer to them at this stage. The applicant’s point is plainly arguable. There is a real question to be tried and, subject to any other disentitling factor, the question should go to trial: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel).
51 It is, however, difficult to understand the thinking behind the proposed amendment. When this question was raised during argument and counsel was asked whether this amendment was pressed, Mr King replied:
MR KING: I do press it, your Honour, as simply another way of putting the same proposition.
HER HONOUR: Well, then why do you need it?
MR KING: Well, because the - it’s not precisely - it’s expressed in more precise language than the earlier implication, your Honour, but we say that it doesn’t introduce any new fact. It’s simply a question - ultimately, a question of law.
52 I am afraid I cannot agree that the proposed amendment is expressed in more precise language. It is, of course, possible that Mr King was merely picking up on the remark Basten JA made in Russell at [32] that “it is probably sufficient to identify the two terms as a single obligation, citing Lord Nicholls’s statement in Eastwood extracted above”. Whatever the intention I do think that, ultimately, the existence and scope of any implied term is a question of law and, at this stage, it would be premature to resolve it. No conceivable prejudice would be caused to the respondent. The lack of particulars is no justification for rejecting it where the implication is said to arise as a matter of law, rather than from the facts. I therefore allow the amendment.
53 The next set of amendments in this category is to paragraph 37. The amendments are similar in nature to those the applicant sought to make to paragraph 14. Paragraph 37 is in these terms:
IOn or about 25 October 2006, the Respondent made an offer of employment and the Applicant accepted that offer on or about 31 October for the position of Business Analyst working at the level of Executive Manager in LBB (“October 2006 Contract”). She did not receive a written contract, Role Summary or Performance Planning documentation setting out the terms and conditions governing her employment under the October 2006 Contract:
A. The October 2006 contract took effect as a variation of the March 2005 contract or was a new contract on similar terms:
Particulars
(i) Communications between the Applicant and Mr Blomfield, on or about 16 October 2006;
(ii) Discussions Communications between the Applicant and Mr Blomfield, on or about 25 October 2006;
(iii) Discussions Communications between the Applicant and Mr Selvarajah, on or about 31 October 2006.; and
(iv) Document confirming the Applicant’s appointment dated 16 November 2006 from Mr Selvarajah.
54 For the reasons I gave in paragraph 38, I disallow the proposed amendments with the exception of the amendments in the first three lines appearing before the words in parentheses.
55 The proposed amendment to paragraph 38 seeks to introduce an allegation that it was an express term of the October 2006 contract that the applicant’s remuneration included:
education/training costs paid in the amount of $50,000 for the degree of Masters of Law and Legal Practise [sic] at the University of Technology, Sydney.
56 The applicant also seeks to add a further particular. This is the same amendment foreshadowed in the case of the May 2006 contract. For the same reasons I gave in that case I refuse leave to make this amendment.
57 Paragraph 45 (with the proposed amendments) is in the following form:
In accepting the position as Business Analyst in Local Business Banking the Applicant acted to her detriment as she
(a) she left her previous position as Business Analyst Premium Business Services reporting to Mr Harvey and did not pursue the possibility of other employment opportunities with the Respondent and she would be unlikely to have left the Respondent for a period of not less than four years;
(b) she ceased to pursue alternative employment with Macquarie Bank where she would be unlikely to have left for a period of not less than four years; and
(c) the Applicant would have accepted employment with Macquarie Bank and would be unlikely to have left Macquarie Bank for a period of not less than four years.
(d) would have pursued career progression within the Public Relations industry and would be unlikely to have left the Public Relations industry for a period of not less than twenty-five years;
(e) would have pursued career progression in an operational capacity within the Financial Services industry and would be unlikely to have left the Financial Services industry for a period of not less than twenty-five years; and
(f) would have pursued career progression in the Legal industry and would be unlikely to have left the Legal industry for a period of not less than twenty-five years.
58 No explanation has been given for the delay in making these amendments. If I were to grant the applicant leave to do so, it would undoubtedly inconvenience the respondent and require considerable investigation and expense. 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. The amendments to (b) and (c) are less troubling as they can be seen to be variations on the original theme. In the circumstances, I grant leave to amend as proposed in paragraphs (a)-(c) inclusive but refuse leave to make the amendments in (d)-(f).
59 Paragraph 74 is the next area of contention. It purports to relate to the claim of victimization. The original amendment sought to add to the allegation that the respondent was vicariously liable for the acts of Messrs Blomfield and Selvarajah:
its General Management, Executive General Management, the Executive of its parent company and subsidiaries, the Non-Executive Directors of the Boards of its parent company and subsidiaries, and the employees of its department of Human Resources which includes its department of Workers Compensation.
60 During the course of argument, however, Mr King retreated from this position.
61 The old proposed amendment has been abandoned. The applicant now merely seeks to add after the reference to the two named employees, “its employees and agents”. There is no dispute that Mr Blomfield and Mr Selvarajah were employees of the respondent at the relevant time. I fail to understand the purpose behind the proposed amendment. I would not allow it if the purpose were to make the same allegation in the earlier version of the amended statement of claim that I have set out above but in a concealed way. The respondent is entitled to be told in the statement of claim the identity of the individuals whose conduct is said to give rise to vicarious liability.
62 There is, however, another issue here. The respondent argued that an employer cannot be vicariously liable for conduct within s 94 of the SDA, which defines and proscribes an offence of victimization. Ms Eastman, who appeared with Ms Wright for the respondent, relied on the terms of s 106 of the SDA, which reads:
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b)done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of this kind referred to in that paragraph.
63 Victimization is proscribed by Part IV of the SDA, not Part II. Section 106 cannot make the respondent liable for conduct amounting to victimization by an employee or agent of the respondent. Presumably that was why Blomfield, [X], Selvarajah and Carroll were added as respondents to the HREOC complaint. But they are not respondents to the present proceeding.
64 I received submissions from both parties on whether s 106 is, in effect, a code on vicarious liability under the SDA or whether common law principles can be invoked. I do not think that the resolution of the question is as simple as Ms Eastman’s submissions suggested. Because I have decided to allow the amendment, however, I prefer to defer reaching a decision on the issue until the principal proceeding has concluded.
65 In any case I am prepared to allow the amendment on the basis that the applicant’s case is that the so-called victimizing behaviour also amounts to further discrimination. Whether or not it does, of course, is another matter, but that matter is also best determined at the hearing. So, if the conduct particularised in paragraph 68 of the proposed amended statement of claim can also amount to unlawful discrimination within Part II, there would presumably be no dispute that s 106 would be engaged. I am not, however, prepared to allow the addition of the words “employees and agents”.
66 The applicant proposes the following amendment to paragraph 75:
By reason of the facts and matters pleaded at paragraphs 68 to 74, the Respondent engaged in the victimization of the Applicant within the meaning of section 94 of the SDA.
(a) the Respondent’s conduct was unlawful discrimination to which section 46 of the HREOC Act and sections [sic] 94 of the SDA applies, or alternatively in respect of which there is an action on the case for the loss and damage caused to the Applicant by reason of the Victimising Behaviour; and
(b) further and alternatively, the alleged acts of victimization are further acts of unlawful sex discrimination.
67 The alternative position buried in subparagraph (a) is novel. It certainly does not answer the description the applicant gave to this category of amendment, namely, that it is an amendment by way of clarification.
68 The way the argument was put was that the breach of the statute in the particular circumstances gives rise to the action on the case.
69 I must confess not to have understood the submission.
70 Unarmed with authority to support it, Mr King argued:
Well, your Honour, we submit that one doesn’t need authority for the proposition that a breach of a statute whose purpose is the protection of the public interest with respect to particular individuals that’s basically the whole purpose of the discrimination law; that on the proper interpretation of the statute, it confers a right of action with respect if damage has occurred as a consequence of the breach. It’s not quite the same as a breach of statutory duty.
71 Whilst ingenuity is not to be discouraged, I do not think this is an example of it.
72 I do not accept that a right of action arises independently of the right conferred by the statutory scheme. In my view, that would be contrary to the intention of the Parliament.
73 The AHRC Act establishes a scheme to vindicate the rights that are protected by the SDA (and also the DDA, the Racial Discrimination Act 1975 (Cth) and the Age Discrimination Act 2004 (Cth)). The scheme involves establishing HREOC (Part II, Division 1) and conferring on it a range of functions, which are both proactive and reactive, including inquiring into, and attempting to conciliate, complaints of unlawful discrimination (s 11(1)(aa)). “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a) Part 2 of the Disability Discrimination Act 1992; or
(b) Part II or IIA of the Racial Discrimination Act 1975; or
(c) Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial Discrimination Act 1975; or
(f) section 94 of the Sex Discrimination Act 1984.
[emphasis added]
74 Part IIB provides the mode of redress for unlawful discrimination. It involves:
Lodging a written complaint with HREOC (s 46P);
Referral of the complaint to the President (s 46PD);
Requiring the President to inquire into the complaint and to attempt to conciliate it (s 46PF(1);
Empowering the President to terminate the complaint in certain circumstances, including the circumstance in which it was terminated in the present case, namely, that the President was satisfied there was no reasonable prospect of the matter being settled by conciliation (s 46PH);
Where the complaint is terminated and notice has been given to the complainant(s), conferring a right on an affected person in relation to a complaint to make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1));
Limiting that right to unlawful discrimination that is the same (or the same in substance) or that arises out of the same (or substantially the same) acts, omissions or practices the subject of the terminated complaint (s 46PO(3));
Providing for a range of remedies if the court is satisfied there has been unlawful discrimination by a respondent (s 46PO(4)). Those remedies are broad in nature and include a right to compensatory damages.
75 Section 110 of the SDA provides:
Except as expressly provided by this Act, nothing in this Act confers on a person any right of action in respect of the doing of an act that is unlawful by reason of a provision of Part II.
76 There is a difficulty with this provision in that the SDA in its current form does not make any express provision conferring on a person a right of action for a contravention of any of its terms. Phipps FM referred to this problem in Taylor v Morrison [2003] FMCA 79 at [18]. His Honour noted that, until the amendments to the SDA (which came into force in October 1999), ss 49-84F of the SDA had provided for complaints and the making of claims and those provisions have now been replaced by the provisions in the AHRC Act pursuant to which complaints are now made and applications of this kind now come before the Court (see Human Rights Legislation Amendment Act (No. 1) 1999(Cth)). He wondered whether the section had any operation anymore.
77 Part II outlaws discrimination on the ground of sex and sexual harassment. As I said before, s 94 appears in Part IV, not Part II. It is unlikely to have been the intention of the Parliament, when it retained this provision after shifting the machinery for its enforcement into the AHRC Act, to limit the right of action in respect of sex discrimination or harassment to the one provided for in the AHRC Act, but to leave open the possibility that the courts might imply the existence of a right of action for victimization outside the elaborate procedure it had expressly put in place for its vindication Nevertheless, because of the changes to the SDA, this question cannot be resolved by the simple expedient of s 110.
78 The general principle is that the identification of what, if any, private rights of action are conferred by a statute (either expressly or by necessary implication) requires an examination of the nature, scope and terms of the statute. That includes “the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation”: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [20], citing Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].
79 It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as the case for a breach of s 94 of the SDA is not available.
80 In any event, I cannot see that the amendment serves any useful purpose. The applicant did not argue that she could achieve anything more by relying on an action on the case than she could by relying on the original pleading. In those circumstances it would not promote the purpose of the overarching purpose to allow the amendment.
81 I reject the amendment seeking to plead an action on the case.
82 I also reject the other amendment to this subparagraph. The reference to “s 46 of the AHRC Act” is bizarre. Section 46 deals with the tabling of reports to the Parliament by the Minister.
83 Section 94 of the SDA is referred to in the opening words of the paragraph. As I have already mentioned, “unlawful discrimination” is defined in s 3 of the AHRC Act to include an offence under s 94, so, on one view, the proposed amendment in subparagraph 75(b) is tautologous.
84 Nonetheless, Mr King sought to rely on the decision of Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 to support his argument. At [36] his Honour noted that s 94 conduct was also conduct that could amount to unlawful discrimination but that the applicant did not rely on s 94 and it was not therefore necessary to say anything more about it. In the circumstance (as I foreshadowed earlier) I think the matter should go to trial. Subparagraph 75(b) should become a new paragraph.
85 The final amendment in Category 1 is in the section entitled “Damages for Further Victimisation” in paragraph 88:
In the alternative to the paragraphs pleaded above (re disability discrimination), the Termination was further victimisation and discrimination of the Applicant (“Further Victimisation”) because the Applicant had:
(a) made a complaint about the [X] Behaviour; and/or
(b) rejected the [X] Behaviour; and/or
(c) made a complaint about the Blomfield Behaviour; and/or
(d) rejected the Blomfield Behaviour; and/or
(e) relied upon the dispute procedure provision within the Contract.
86 As I understand this paragraph, the applicant’s main contention is that the respondent terminated her employment because she was under a disability: see paragraph 85 of the proposed amended statement of claim. By this paragraph she wishes to argue in the alternative that the fact that her employment was terminated amounted to victimization within the meaning of s 94 of the SDA or of s 42 of the DDA (it is unclear which) and also discrimination because she had made the complaints about Messrs [X] and Blomfield and that she had relied upon the dispute procedure provision within the Contract.
87 The respondent’s complaint about these proposed amendments was that the reference to “the paragraphs pleaded above” was confusing, particularly as it removed the references to paragraph numbers that appeared in the statement of claim that was filed. Mr King confirmed that the applicant’s intention was to plead this allegation in the alternative to the paragraphs that relate to disability discrimination. In the circumstances that criticism falls away.
88 I refuse leave to add the words “and discrimination”. The material facts necessary to support it are not pleaded. The allegation in subpara (b) is obviously made to remedy an oversight and I will allow it. The allegation in (e) is mystifying. And, as the proposed amended statement of claim refers to three different contracts, it is also embarrassing within the meaning of O 11 r 16 of the Rules in that it is ambiguous, vague, substantially unintelligible. See Bartlett v Swan Television & Radio Broadcasting Pty Ltd (1995) ATPR 41-434. For these reasons I refuse leave to add subparagraph (e).
89 I therefore allow the amendments proposed to line one of paragraph 88 and to add subparagraph (b) but disallow the rest.
Category 2 & 3 amendments: further particulars and sexual assault
90 The applicant claims that the further matters she wishes to particularise in the statement of claim, including the sexual assault, are not new matters as they were before HREOC. She again relies on O 13 r 2(2). She also relies on the fact that counsel for the respondent, when she cross-examined the applicant on her affidavit, did not challenge her on the fact of the alleged assault or on the proposition that it formed part of the events the subject of the HREOC complaint.
91 The first group of amendments appears in paragraph 18 and relates to allegations of sexual harassment/discrimination against [X]:
From in or about 16 May 2006 until on or about 30 June 2006, 24 February, and from 12 April until on or about 18 July 2006, and on and around 13 April 2007, [X] breached the implied term of trust and confidence of the May 2006 Contract by engaging in behaviours towards the Applicant, including but not limited to:
(a) making persistent requests for sex;
(b) making sexually derogatory and/or sexually abusive comments about the Applicant to the Applicant including in the presence of other persons and/or in public, including but not limited to:
Particulars
[Not reproduced.]
(c) making comments of a sexual nature to the Applicant regarding the Applicant;
(d) terminating the Applicant’s employment and/or threatening to terminate the Applicant’s employment;
(e) making comments of a sexual nature to the Applicant regarding another employee;
(f) commenting on the Applicant’s physical appearance;
(g) persistently requesting the Applicant to meet him for drinks and/or meals after work;
(h) advising the applicant to the effect he would not employ her unless he she allowed her him to flirt with him her;
(i) on two occasions attempting to have sexual intercourse with the Applicant without the Applicant’s consent;
(j) on at least one two occasions trying to kiss the Applicant;
(k) isolating the Applicant from other employees of the Respondent by placing her work station within the executive suite on level 17 of the Respondent’s 363 George Street premises in Sydney;
(l) failing to provide the Applicant with Performance Planning and Performance Review documentation during her employment;
(m) commenting on the physical appearance of other employees to the Applicant;
(n) touching and kissing another employee in front of the Applicant;
(o) on at least four occasions indecently assaulting the Applicant;
(p) making threats to the Applicant in the event that she reported his conduct;
(q) attempting to establish a relationship of trust with the Applicant’s family;
(r) complimenting the applicant excessively with regard to her clothing and fragrance;
(s) failing to notify the Respondent of the May 2006 Contract until June 2007;
(t) failing to notify the Respondent of the Applicant’s rank of Level 3, Executive Manager, ever;
(u) telling the applicant that Level A was equivalent to Level 3 within the Respondent’s hierarchical classification structure;
(v) causing the Applicant to lose her position as Business Analyst, Sales and Service, Premium Business Services on 18 July 2006;
Particulars
(i) Particulars of the conduct in 18(b) and (i) – (v) are contained in the statement made by the Applicant to the Human Rights and Equal Opportunities Commission (“HREOC”) dated January 2008, a copy of which has been served on the Respondent (“the HREOC Statement”);
(w) commenting on the physical appearance of the Applicant’s mother;
(x) making comments of a sexual nature to the Applicant regarding the Applicant’s mother; and
(y) sexually assaulting the Applicant.
Particulars
(i) Particulars of the conduct in 18 (w), (x) and (y) are contained in the detailed Statement of a Witness made by the Applicant to the New South Wales Police Force on 13 February 2009 (“the Police Statement”), a copy of which has been served on the Respondent.;
92 It is common ground that several amendments to paragraph 18 did not appear in the voluminous material furnished to HREOC. They are the allegations in paragraphs 18(m), (q), (w), (x) and (y). The allegations contained in paragraphs 18(w) and (x) of the proposed amended statement of claim concern comments of a sexual nature about, and relating to, the physical appearance of the applicant’s mother, which, on their face, have little or nothing to do with the allegations in the statement of claim. The allegation made in paragraph 18(y) is that [X] sexually assaulted the applicant. The sexual assault is not particularised or otherwise described but the details are given in full in a statement the applicant made to the NSW Police Service on 13 February 2009.
93 In her affidavit filed in support of this notice of motion the applicant did provide an explanation for the addition of the claim of sexual assault, though not for any of the other amendments in this category. Her explanation was that she was “reluctant to include the matters in these proceedings” because she was concerned about “compromising the police investigation”. She never explained why or how she thought that “including” the allegation of sexual assault in these proceedings would or even could compromise that investigation. I am unable to accept the explanation.
94 The police statement was made more than two and a half years after the conduct is alleged to have taken place, 13 months after the applicant had lodged her complaint with HREOC and nearly seven months after this proceeding was commenced. In cross-examination she affirmed that she had made a deliberate decision not to raise the matter at the time of the police investigation, claiming to have been so advised by her then legal advisors, and that she only decided to do so after the police suspended the investigation in December last year. This evidence is problematic because, as the applicant conceded in cross-examination, she had no hesitation raising some of the subject matter included in her police statement in her workers’ compensation claim. Her explanation for the apparent inconsistency was that she started the workers’ compensation proceedings after she had reported the matter to the police.
95 In any case, however, a reluctance to compromise the police investigation would not explain the applicant’s failure to mention it in the HREOC complaint or to plead it in the statement of claim, as the complaint to the police was not made until after the HREOC complaint had been terminated and after this proceeding had commenced.
96 In her police statement, possibly in response to a question from the police, the applicant gave a completely different explanation for her delay in complaining. This is what she said there:
“These allegations [referring to the allegations the subject of the present proceeding] did not include the sexual assault of me by [X] as I had not yet informed any person about it at the time…”
97 She told the police she would not agree to settle her claim because that would have involved signing a deed of release and that “would have meant that I would never be able to report sexual assault to the Police”. This is a curious comment in view of what follows, namely, “I was also unaware that digital penetration amounted to sexual assault and I thought that ‘rape’ was only penetration with the penis. It wasn’t until I was making an affidavit in late December 2008 for the civil proceedings, regarding what had occurred, that I came to realise that a criminal offence had been committed”. That could explain why she did not report the conduct to the police, but it certainly does not explain why she did not give an account of the alleged conduct in her complaint to HREOC or in the statement of claim.
98 Section 46PO(3) of the AHRC Act limits the scope of any application to the Federal Court (or the Federal Magistrates Court) for unlawful discrimination:
(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.
99 “Unlawful discrimination” is defined in s 3 of the AHRC Act in such a way as to capture sexual harassment and victimization as well as discrimination.
100 In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J said:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility (“or the same in substance as”, “or substantially the same”) and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
101 The final shape of the complaint can be seen from the letter from the President’s delegate terminating it which is attachment A to the notice of termination and was annexed to the application which initiated this proceeding. There is no reference to digital penetration there or in the very lengthy HREOC statement, itself, or the supplementary statements.
102 In re-examination this exchange occurred between counsel for the applicant and the applicant:
MR KING: It was suggested to you that in relation to the events of 9 June 2006, that you made a tactical decision not to advance that question in the present proceeding. Are you able to inform her Honour as to what has motivated you to bring that matter forward in this proceeding and why it wasn’t brought forward earlier?---Well, I think that it was brought forward earlier. I think it was brought forward at item 10 on page 30 [of the HREOC statement].
103 This answer was inconsistent with the evidence the applicant gave in her affidavit and under cross-examination to the effect that she had, indeed, made a tactical decision not to include the matter in this proceeding. I find it very difficult to reconcile the two accounts. It is also completely at odds with what she told the police.
104 In his supplementary written submissions Mr King argued that the new allegation was “consistent with the material contained in the HREOC complaint”. But consistency is not the test imposed by s 46PO(3). During oral argument Mr King contended that the event described in the HREOC complaint under the date 1 June 2006 was the same event the applicant now says occurred on 9 June 2006, the only difference (apart from the date) being that there is a fresh allegation of digital penetration. On a careful comparison of the police statement with the HREOC statement, there are significant differences between the two. Still, it is not implausible that the applicant was intending in the police statement to refer to the same occasion as that which she told HREOC occurred on 1 June but simply added to her description of it to the police. The omission of many of the details from her HREOC statement, including the allegation of digital penetration, may affect her credit. Yet, if she maintains that the incident is one and the same as that she related to HREOC, then s 46PO(3) does not prevent her from including it in these proceedings.
105 To fall within s 46PO(3) it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different – not the same or substantially the same – conduct: cf. Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 at [9]:
A new incident, even if it is an incident of the same type as advised to the Commission, would be unlikely to pass this test because, if unknown at the time of the attempted conciliation, it could not have been part of it.
106 The allegation of sexual assault is not the same or substantially the same conduct that was the subject of the terminated complaint. But, if the applicant was, indeed, referring to the episode she told HREOC had occurred on 1 June, then the alleged sexual assault does arise out of the same or substantially the same, acts, omissions or practices that were the subject of the terminated complaint. Despite the very important differences between the accounts, I am prepared to accept that the allegation does not relate to a new incident. Rather, it is a new allegation (or, more accurately, a set of new allegations) about the same incident and it therefore falls within the ambit of the terminated complaint. That does not, however, dispose of this amendment.
107 There has been a significant delay in making this allegation, both to the police and in the proceeding.
108 The explanation for the delay given in the affidavit filed in support of the motion relates only to the period during which the police investigation was ongoing (2009). There is no explanation for the omission of any reference to it in the HREOC statement submitted in early January 2008 or in the statement of claim filed in this Court in July 2008. The explanation the applicant provided the police does not explain why a description of the conduct was omitted from the HREOC statement or the statement of claim. Why was it important to include in the HREOC statement references to drinking chai tea, for example, but not to conduct that amounts to a sexual assault?
109 The belated assertion in re-examination that the allegation had in fact been included in the HREOC statement does not withstand scrutiny and, as I have already observed, does not appear to be consistent with what the applicant told the police.
110 In the result, I am not satisfied that the applicant has adequately explained the delay in including a sexual assault in the pleading.
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 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.
113 It is beside the point that counsel did not cross-examine the applicant so as to query the fact of the alleged assault. This application is not concerned to determine the truth of the allegation, merely whether the applicant should be permitted to make it at all.
114 I refuse leave to add paragraph 18(y).
115 The allegations made in (w) and (x) that relate to the applicant’s mother are admittedly new allegations not described in the HREOC statement. The respondent argues that they are outside the scope of the definitions of unlawful discrimination or sexual harassment anyway. A comment of a sexual nature about another person does not necessarily fall outside the definition of sexual harassment. Section 28A of the SDA provides:
Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
116 So [X] will have sexually harassed the applicant for the purposes of the SDA if he made a statement of a sexual nature to her or in her presence provided that the statement is “in relation to” her and in the circumstances a reasonable person would have anticipated that the applicant would have been offended, humiliated or intimidated. The context in which a statement is made may make it a statement of a sexual nature “in relation to the person harassed”.
117 A relationship connotes a link, a connection or an association. It is well accepted that exposure to sexually explicit material or sexually suggestive jokes amounts to conduct of a sexual nature within the definition of “sexual harassment”; see Australian Human Rights Commission, Federal Discrimination Law (August 2009) at [4.6.1], and the cases listed there.
118 The question arises as to whether the comments attributed to [X] regarding the applicant’s mother are also “in relation to” her. The alleged comments are set out in the police statement. They were taunting in nature. They compared the applicant’s mother to her. They were allegedly made in the office when no-one else was around and followed other statements of a sexual nature about the applicant herself. In the context in which they are said to have been uttered, they are connected or associated with her. They are certainly capable of amounting to unwelcome conduct of a sexual nature in relation to the applicant in circumstances in which a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated.
119 The fact that they are not detailed in the HREOC complaint is not a disqualification because, in this instance, I am satisfied that the remarks arise out of the same or substantially the same conduct alleged against [X] and described in the complaint.
120 There are other amendments to this paragraph that fall within the same class. That is they plead comments or conduct concerning others. Those particulars are in (m) and (n).
121 The reason for these late amendments, however, is not explained.
122 The reason for the delay is not self-evident. Because there is no reference to it in the HREOC complaint and two years have elapsed since the application was filed, I refuse leave to add paragraphs (w) and (x).
123 The proposed paragraph 18 also seeks to expand the time during which the offending conduct is alleged to have occurred. In his final set of written submissions, Mr King argued that the inclusion of 24 February 2006 is a reference to what the applicant said in her HREOC statement was her first meeting with [X] (there said to be on 14, not 24, February 2006) and that she “made a simple date error” in her HREOC statement. If this were an error on the applicant’s part, there is no evidence to support it and no explanation for why no February date was included in the original form of the statement of claim. But more importantly, what appears in the HREOC statement for 14 February 2006 is an account of the circumstances of the applicant’s meeting with [X]. It is relevant background but it does not embrace any of the conduct described in the particulars.
124 There is an additional problem arising from the curious way in which the allegations of unlawful discrimination are pleaded. The allegation in this paragraph is of a breach of an implied term in the May 2006 contract. The respondent cannot be in breach of a term of a contract that has not yet been entered into.
125 I reject the amendment to include 24 February 2006. For the same reason I reject the amendment to include “the period from 12 April 2006…”.
126 The reference to 18 July 2006 is said to be “directly referable to” the statement attributed to [X] and reported in the HREOC statement that he told the applicant he would no longer require a business analyst. It occurred some three weeks after the close of the period relied upon in the original statement of claim. I am prepared to allow the amendment.
127 The attempt to expand the period to incorporate 13 April 2007 is more problematic. According to the applicant’s last submission its purpose is to catch the statement made to HREOC that on that day the applicant was advised by Ingrid Leipins, General Manager Talent and Development, and [X] to approach Peter Hill immediately “due to the seriousness of the situation with Michael Blomfield”. On its face it has nothing to do with the allegations made in paragraph 18. It is not further explained. I refuse leave to add it.
128 The insertion of the words “of the May 2006 Contract” merely clarify the allegation concerning breach and I allow that amendment.
129 With one qualification I also allow the amendments to subparagraphs (b), (h), (i) and (j) which strike me also as clarification only and are clearly covered by the HREOC statement. I reject the respondent’s contention that the applicant’s case in this regard is so confusing that it is impossible for the respondent to defend the allegations. One consequence of the late submission the applicant has made is that the respondent will no longer have “to guess the scope of the evidence to be led at trial by guessing which parts of the various documents relied upon underlie the proceedings” (as the respondent submitted). The scope of that evidence has now been identified. The qualification is that I will not allow that part of the amendment that begins with the words “including but not limited to” and contains “particulars”. These “particulars” like many in this flawed pleading are a misnomer. In this case they provide evidence. While I have chosen to overlook other instances of this in the pleading, in this case I will not, as the contents are scandalous. That is not to say that the evidence cannot be called. It simply has no place in the pleading.
130 And I allow the amendments to plead (m) and (n) for the reasons given above and as they are also plainly the subject of complaint to HREOC.
131 Subparagraph (o) is also covered by the HREOC statement and I allow it.
132 Support for the new allegations in subparagraphs (q) and (r) is said to come from [X]’s admission in his HREOC statement made on 13 June 2008 and (in the case of the allegation in subparagraph (r) paragraph 18(i) of the Defence). [X]’s HREOC statement was not tendered in evidence. Paragraph 18(i) of the Defence is no support at all. It contains an admission that [X] occasionally complimented the applicant on her professional style of dress. That scarcely supports an allegation that he complimented her excessively on her clothing and fragrance. I refuse the amendments.
133 The proposed amendments in subparagraphs (t)-(u) are troubling. The justification for (t) is that the applicant said in her HREOC statement that “no PF&R Plan was issued and because of this, I continued to experience uncertainty and concern”. The justification for (u) is that she told HREOC that “[X] told me that I was equivalent to an Executive Manager Level 3”. Neither reference appears to support the allegation in the proposed pleading.
134 The conduct pleaded in paragraph 18(v) is said to be “directly referable” to the conduct described in the HREOC statement at pp 39 and 43 where (on 26 June 2006) [X] is said to have told the applicant to leave and (on 18 July 2006) allegedly informed her that he suspected his own reporting line would change and he would no longer require a business analyst. It is difficult to understand exactly what the allegation the applicant wishes to make is and I am mindful that this proceeding is not the proper vehicle for the ventilation of all complaints she might have against the respondent. Nevertheless, as this matter was arguably covered by the matters related to HREOC, I will allow the amendment.
135 The next area of dispute is in paragraph 26 where the applicant seeks to amend to add as a particular of her claim for general damages for sexual harassment by [X]:
(i) Communications between the Applicant and [X] regarding her position reporting to the General Manager, Sales and Service, Premium Business Services, on and around 18 July 2006.
136 It is highly irregular to plead any particulars of a claim for general damages. If any were to appear I would expect them to detail the nature of the “hurt, humiliation and distress” for which the applicant seeks those damages. Whatever can be said of this passage, it does not provide particulars of anything. I refuse the amendment.
137 The next set of amendments falls under the heading “Complaint about the [X] Behaviour”. As I read it, the intention is to plead the facts upon which the complaint of victimization is based.
138 The proposed paragraph 29 introduces a new allegation that the applicant reported [X]’s behaviour to Ingrida Liepins, described as “Human Resources for the Respondent”, whatever that means. It is in the following terms:
On or about 28 June 2006, the Applicant spoke to Ms Ingrida Liepins, Human Resources for the Respondent, about the [X] Behaviour:
Particulars
(i) Communications between Ms Liepins and the Applicant on 26 and 28 June, and 5 July 2006, inclusive.
139 There is no reference to such “communications” in the applicant’s HREOC statement on any of the dates mentioned. Again, the particulars are not particulars at all. There is no explanation for the failure to make such an allegation previously. Ms Liepins’s name did not figure in the original statement of claim. Four years have passed since the alleged conversation. How the respondent would be able to meet the allegation after this time was never explained. Even if Ms Liepins were available to give evidence (and I note the applicant, upon whom the onus rests, called no evidence to show she was), the prospect of Ms Liepins being able to recall the conversation(s) without a note is questionable. The applicant offered no evidence to show that Ms Liepins had made a contemporaneous record of the conversation(s). In all the circumstances I refuse leave to make this amendment.
140 The next proposed amendment is to paragraph 31.
On 30 June 2006, Mr Carroll facilitated witnessed a meeting at which [X] and the Applicant came to an agreement about the [X] Behaviour including that the agreement would remain confidential the [X] Behaviour would cease, the Applicant’s employment with the Respondent would be reinstated, the Applicant’s role, rank, salary and career path with the Respondent would not be affected by the [X] Behaviour, and that the incidents would remain confidential:.
Particulars
(i) Communications between [X] and the Applicant on 30 June 2006;
(ii) Communications between Mr Carroll, [X] and the Applicant on 30 June 2006;
(iii) Hand written document titled “[X] – 30 June”; and
(iv) Typed dDocument headed titled “Meeting Agenda” dated 30 June 2006, with a hand written note at the bottom of the document and signed by the Applicant and [X] marking Mr Carroll as an attendee of that meeting, and with another hand written note at the bottom of the document, signature by [X] and signature by the Applicant.
141 No submissions were made in support of this amendment, save for the fact that the allegations were said to have been made in the HREOC statement and to the police. There are only two reasons why that could be relevant. First, if it is said not to be excluded by s 46PO(3) of the AHRC Act and secondly, because the respondent already has notice of it. Still, the applicant has to show how the allegation bears on the causes of action the subject of the proceeding. The police statement can be put to one side as the respondent did not receive it until earlier this year. It does seem that this meeting was referred to in the HREOC statement, where Mr Carroll is said to have mediated a dispute between [X] and the applicant, but I do not understand how the fact that Mr Carroll may have witnessed a meeting at which such an agreement was reached is a material fact relating to any of the pleaded causes of action. Accordingly, I decline leave to make the amendment. The original pleading suffers from the same vice but there has been no application to strike it out.
142 The applicant also seeks to add paragraph 32:
The Respondent took no steps, or no reasonable steps, to ensure that the Applicant’s role, rank and career path with the Respondent was not affected by the [X] Behaviour.
143 Again, no submissions were directed to this amendment apart from references to places in the HREOC statement and in the police statement where the allegation is said to have been made. Yet, there are differences between what appears in those documents and what is pleaded. For example, the complaint in the police statement is about the conduct of the CBA, not the respondent, and it is a complaint that it did not take any action against [X], not that it failed to take steps to protect the applicant’s “role, rank and career path”. I refuse the amendment. I would add that the applicant did not explain the foundation for any duty on the part of the respondent to “ensure” that discriminatory conduct or sexual harassment does not affect the “role, rank and career path” of a complainant.
144 The final amendments under the heading “Complaint about [X] behaviour” are to paragraph 35:
On or about 18 July and 4 August 2006, the Applicant was directed to report to Mr Harvey by [X].
Particulars
(i) Conversation between [X] and the Applicant on or about 18 July and 4 August 2006; and
(ii) Conversation between [X] and Mr Harvey in the presence of the Applicant on or about 4 August 2006.
145 The only submission made in support of this amendment appears to be that it is covered by something on page 52 of the HREOC statement. But page 52 of the HREOC statement relates to events of 1 September 2006 and concerns the conduct of Mr Blomfield. Nothing in this paragraph as originally pleaded or as amended seems to plead a material fact. Its relevance to any cause of action is obscure. And the particulars, once again, are a misnomer. I decline the amendments.
146 I now turn to the proposed amendments to paragraph 47 which appear under the heading “Sexual harassment/discrimination by Mr Blomfield”. The proposal, as I read it, is to add 45 new particulars to the allegation made against Mr Blomfield that he “breached the implied term of trust and confidence” in both the May and the October 2006 contracts (as defined in the pleading), “by engaging in behaviours [sic] towards the Applicant” sufficient to amount to sexual harassment or discrimination or both.
147 Once again, no explanation for the late amendments has been provided. The new particulars, however, are said to have been contained in the complaint to HREOC.
148 The first of these amendments is to subparagraph (b):
Making comments of a sexual nature, including but not limited to sexual comments about superiors, sexual comments about other employees, sexual comments about himself and sexual comments about the Applicant, to the Applicant.
149 The proposed amendments do not enlarge the original allegation and, on that basis, I allow them.
150 The next group of amendments is to subparagraph (e) which alleges inappropriate touching of the applicant without her consent. In its original (unsatisfactory) form it opened with the words “touching the Applicant inappropriately and without her consent including but not limited to” (emphasis added).
151 The following amendments are proposed:
(i) trying to kiss and hug her at least twice and pressing himself against her on or about 15 June 2006;
(ii) rubbing up against her, including but not limited to on or about 12 July 2006; and
(iii) holding her hand and pulling it towards his body in a sexually suggestive manner on or about 12 July 2006;
(iv) on or about 8 August 2006, rubbing her calf under a table, grabbing her arm in an aggressive manner and putting his arm around her in a sexual manner and placing his foot between her legs;
(v) on 8 August grabbing her arm in an aggressive manner and pulling her towards him; and
(vi) on 15 June and 8 August 2006 putting his arm around her and pulling her body in towards his body so that his body was touching her body.
152 I allow the deletions. I also allow the amendments to the rest of the subparagraph with the exception of the addition of the words “but not limited to” in (e)(ii). The respondent is entitled to know the case it has to meet. I will not permit the applicant to expand the case beyond what she is prepared at this late stage to justify. I am troubled enough by the reference to “not limited to” in the opening words of the subparagraph. The amendment to add (v) and (vi) (with the exception of the new entry for 15 June) merely separates incidents of different kinds into separate subparagraphs and more fully describes them. They are also the subject of the HREOC complaint. I presume that the reference in (vi) to “putting his arm around her and pulling her body in towards his body so that his body was touching her body” is what the applicant described in the HREOC statement by saying “he hugged me for an extended period”.
153 Particulars (m) and (n) – “commenting on the physical appearance of a female supervisor of the Applicant, to the Applicant, in a sexually discriminative [sic] and derogatory way” [(m)], and “touching and embracing other female employees in front of the Applicant” [(n)] – are capable of amounting to unwelcome conduct of a sexual nature in relation to the applicant for the reasons I gave earlier. But the submission that they are “directly referable” to conversations with Mr Blomfield “described on pages 33 and 34 of the HREOC Statement” is not made out. The question there attributed to Mr Blomfield (“what is your opinion of attractive women in business?”) is substantially different from the allegation in particular (m). Although evidence of this kind might be relevant to the principal allegations concerning Mr Blomfield’s behaviour, the particular that has been pleaded is different from the matters raised in the HREOC complaint. I reject the amendment.
154 The submission in support of particular (n) is even weaker. It is said to be based on the following passage in the HREOC statement:
“Michael kept insisting that I relax and I asked him: ‘what do you mean Michael, would you like me to start throwing myself at you like these CommSec women?’”
155 I disallow the amendment.
156 The remaining allegations between paragraphs (f) and (uu) relate to conduct also said to be described in the HREOC statement. Although several of them derive flimsy support from the Statement, the discrepancies between the allegations and the account is properly left to cross-examination. I therefore propose to allow all but the following on that basis:
(h) “dirty dancing” with subordinate female employees in front of the Applicant. The applicant claims that a passage on page 34 of her HREOC statement puts the respondent on notice of this allegation. This is the passage: “Michael kept insisting that I relax and I asked him: ‘what do you mean Michael, would you like me to start throwing myself at you like these CommSec women?’”. I fail to see how it puts the respondent on notice of the allegation.
(i) persistently telling the Applicant to “relax”. Support for this particular is said to be derived from a related passage on the same page of the HREOC statement: “he [Michael] was highly intoxicated and making me feel uncomfortable by continually telling me to “relax””. This is not a matter for particulars.
(p) advising the Applicant that he considered the Applicant to be his “close” friend is evidence, not a particular. I disallow it for that reason.
(q) winking at the Applicant is said to be “directly referable to” the following passage on page 25 of the HREOC statement:
Michael then suggested that he would escort me to the quarterly PBS report.
I am afraid I am unable to see the connection.
(dd) asking the Applicant if she would consider being wife to him is not a particular but evidence. I disallow it on that account.
(ee) complaining about his wife to the Applicant on at least one occasion. The passage in the HREOC statement to which this so-called particular is said to relate is a lament in these terms: “I’m up to my armpits in nappies and bottles”. It is not a particular of sexual harassment or discrimination and it is not a complaint about his wife.
(gg) flicking rubber bands at the Applicant. Similarly, there is nothing about this allegation that suggests unwelcome conduct of a sexual nature. In Shiels v James [2000] FMCA 2 at [70], where a similar allegation was made, Raphael FM considered that “the facts could show a case of discrimination short of harassment if it was found that the rubber band flicking incidents did not have a sexual connotation but were merely indicative of conduct that was made towards a woman which would not have been made towards a man”. Later, his Honour found that the incidents relating to the elastic bands were in fact of a “ ‘sexual nature’ forming part of a broader pattern of inappropriate sexual conduct”. Whilst this might suggest that on a General Steel test the allegation should go to trial, the applicant has not shown that it should. Each case turns on its facts. The applicant did make an allegation of this kind in her HREOC statement (at p 52). The behaviour is said to have occurred on 1 September 2006 at a meeting outside Mr Blomfield’s office. It did not take place in private but in the company of both men and women. At the time the applicant said she was in a cubicle with Bernard Tanner. The only reference to the rubber bands is this:
He began flicking rubber bands at me to get my attention.
Behaviour of this kind is likely to be irritating, annoying and unwelcome. It is childish and potentially dangerous. But, without more, there is nothing about it which could justify the description of “unwelcome conduct of a sexual nature”. Nor was any material tendered to support a conclusion that it was “indicative of conduct that was made towards a woman which would not have been made towards a man”.
(hh) calling the Applicant at around 1.00am on her mobile phone while she was sleeping. This is not a material fact.
(ii) leering at the Applicant’s breasts. This is merely an example of what is already particularised in subparagraph (d). It is unnecessary.
(nn) on 1 December 2006 directing the Applicant’s manager to instruct the Applicant to engage him derives no support from the passage in the HREOC statement to which it is said to be “directly referable”. I also have some difficulty understanding what the allegation means or how it is relevant to the pleaded causes of action.
(oo) disclosing the content of communications, the context of which related wholly to his sexual conduct towards the Applicant, to the Applicant’s manager. This is said to be “directly referable” to a passage on p 77 of the HREOC statement where the applicant claims that Mr Selvarajah told her “Michael just called me into his office and told me that he walked past you in the corridor and you didn’t say hello to him” and “you can’t walk past Michael without saying hello” and “I need you to go into his office and say hello to him… and apologise for not saying hello to him in the corridor”. The connection between the material in the HREOC statement and the proposed subparagraph (oo) was not explained in any of the submissions and the connection between this proposed amendment and any of the pleaded causes of action eludes me.
(pp) directing the Applicant’s manager to take action against the Applicant for the content of communications, the context of which related wholly to his sexual conduct. (qq) informing the Applicant’s manager that she had behaved sexually toward him; These two allegations are said to be “directly referable” to an SMS message mentioned on page 84 of the HREOC statement that the applicant claims she sent to Mr Blomfield in these terms: “My respect for you is at an all time low” and an admission from Mr Blomfield in paragraph 22 of a sworn statement dated 8 June 2007 discovered by the respondent. No sworn statement from Mr Blomfield was tendered in evidence. One of the exhibits to an affidavit of Elizabeth Ferrier, the respondent’s solicitor, affirmed on 29 April 2010 (one of several affidavits read by the respondent on the motion) is a signed statement from Mr Blomfield bearing the dates 28 May 2007 and 8 June 2007, which carries a notation suggesting it was discovered. I assume this is the “sworn statement” to which the submission refers. Paragraph 22 of that statement reads: “At the NSW Team Christmas party which Vivienne was at, and whilst I was socializing I received an sms text message from Vivienne that stated “my respect for you is at an all time low”. I showed Arnie, who was seated next to me, this message. This message annoyed me, but I ignored the message leaving Arnie to deal with it.” I do not see how this material supports the allegations the applicant wishes to make and therefore the respondent is not on notice of them. Nor do the allegations plead material facts.
(rr) informing the Applicant’s manager that she had behaved sexually towards her former supervisor; (ss) informing the Respondent that the Applicant had behaved sexually towards both he [sic] and her former supervisor; and (tt) directing the Applicant’s manager…to terminate the Applicant’s employment in response to the Applicant’s complaint regarding harassment of her. These particulars are said to be “directly referable” to admissions by Mr Blomfield at paragraph 14 of his “sworn statement”. Paragraph 13 relates an approach by Mr Selvarajah to Mr Blomfield in about October 2006. Mr Blomfield said that Mr Selvarajah indicated he needed a business analyst reporting to himself. Mr Blomfield said he approved the position and Mr Selvarajah nominated the applicant as a possibility. He went on to say that they discussed the matter at length. In paragraph 14 he stated:
In our discussions about employing Vivienne into this position we had some concerns including her previous behaviour relating to issues she had had with [X] and her interaction with myself. However Vivienne had appeared to regain her composure and her mental stability appeared better.
He then reports that he agreed to Mr Selvarajah employing the applicant in that position and reporting to him. I do not see how this paragraph contains admissions from Mr Blomfield of the conduct alleged in the subparagraphs. There is no reference to sexual behaviour on her part. Neither is there any reference to a direction to terminate her employment – quite the opposite in fact.
(uu) directing the Applicant’s manager as well as another senior employee of the Respondent to terminate the Applicant’s employment in response to the Applicant’s complaint regarding harassment of her. This allegation is said to be “directly referable” to an account the applicant gives on page 85 of her HREOC statement of a conversation with Mr Selvarajah in which she said she complained about Mr Blomfield’s behaviour. It is also said to be “directly referable” to “evidence discovered by the respondent on 8 January 2010 … in which Blomfield directed a senior executive of the respondent to “get her out”, referring to the applicant.” Nothing on page 85 of the HREOC statement even suggests that Mr Blomfield directed Mr Selvarajah or anyone else to terminate her employment. Whatever the evidence discovered by the respondent on 8 January 2010, so far as I can tell, it is not in evidence. Certainly, the submissions did not refer to an exhibit which matched its description or to an annexure to any affidavit that was read on the motion. Schedules 6 and 7 to the applicant’s submissions contained what were described in the index to the folder in which they were placed as bundles of documents produced by the respondent on 19 and 25 January 2010 respectively. I cannot identify any document that might have been discovered by the respondent on 8 January 2010.
157 At paragraphs 58 to 65 of the proposed amended statement of claim the applicant sets out complaints she made to various individuals and departments “of the Respondent” about “the Blomfield behaviour”. Doing the best I can, I gather that the purpose of the pleading is to support the allegation made in paragraphs 66 and 67. Paragraph 66 is in these terms:
The Respondent took no steps, or no reasonable steps to ensure that the Applicant’s role, rank, salary and career path with the Respondent was not affected by the Blomfield Behaviour.
158 Paragraph 67 pleads:
The Respondent took no steps, or no reasonable steps, to ensure confidentiality.
159 I disallow these amendments. As I said in the case of the so-called “[X] behaviour” the foundation for such a duty was never articulated. The amendments relate to the applicant’s conduct in 2006 and 2007 and the respondent’s inaction thereafter. They depend for the most part on conversations that took place three or four years ago with numerous individuals, which may, or may not always be supported by contemporaneous documents. Certainly, I was not taken in argument to any documents said to support them. The applicant could scarcely have been unaware of the facts underlying them. If they were relevant, they should have been pleaded in the first instance. No explanation has been given for the delay in making the allegations now. Were I to allow the amendments, they would require the respondent to incur additional costs in meeting them and could significantly extend the time taken to hear the case.
160 The next group of amendments in this category appears under the heading “Victimisation/further discrimination”. The paragraph reads:
67. 68. From in or about November 2006, Mr Blomfield and/or Mr Selvarajah of the Respondent engaged in behaviour in further breach of the implied term of trust and confidence of the October 2006 Contract, including but not limited to:
(a) preventing the Applicant from attending critical meetings necessary to perform her assigned responsibilities;
(b) isolating the Applicant from team events;
(c) humiliating the Applicant in front of other employees;
(d) not providing clear guidance with regard to the Applicant’s role and responsibilities;
(e) not providing any, or any reasonable feedback as to the Applicant’s performance;
(f) setting unreasonable targets;
(g) asking the Applicant to sign termination warnings that were not provided to her;
(h) performance managing the Applicant without reasonable basis and/or failing to comply with the Respondent’s policy with respect to managing performance;
(i) threatening to dismiss the Applicant;
(j) demoting the Applicant on or about 67 March 2007 during the Respondent’s formal dispute procedure;
(k) performance managing the Applicant on that demoted position without reasonable basis giving the Applicant poor performance ratings for the reason that she was medically unfit for work;
(l) on or around 10 April 2007, removing the Applicant’s security access from the Respondent’s business premises, including without notifying the Applicant; and
(m) informing the Respondent that the Applicant had “behavioural” issues without providing a reasonable description of what those “behavioural” issues were, or basis for doing so;
(n) failing to provide the Applicant with Performance Planning, Performance Review and Role Summary documentation during her employment;
(o) isolating the Applicant from other employees of the Respondent by placing her work station on level 25 of the Respondent’s 363 George Street premises in Sydney which was away from those employees with whom she worked directly;
(p) praising other employees for the Applicant’s work;
(q) instructing employees to stop working with the Applicant;
(r) informing the Respondent that the Applicant was absent from work without explanation when the Applicant was working and/or was on approved sick leave;
(s) preventing the Applicant from securing alternative employment with the Respondent, employment which was offered to her during the Victimising Behaviour and which at least Mr Blomfield was aware of;
(t) informing the Respondent that the Applicant’s performance output was not acceptable without a basis for doing so, and/or that she was being managed for non-performance, when she was not;
(u) failing to recognise or reward the Applicant for her contribution to the establishment of the Local Business Banking division;
(v) making derogatory and unqualified assertions about the Applicant’s psychological health to the Respondent; and
(w) directing the Respondent’s department of Human Resources to terminate the Applicant’s employment in or around October 2007; and
(x) failing to apply the Respondent’s grievance handling procedures and discrimination policies in the respects alleged in (a) – (w) of paragraph 68.
Particulars
(i) Particulars of the conduct in 68 (h) – (x) are contained in the HREOC Statement.
161 The respondent complains that the amendments put the breach of contract claim “in a very different way to the way it had initially been pleaded”. The crux of the argument is that the claim has been significantly expanded (amongst other things by the addition of 13 allegations) into what is realistically no more than a complaint about behavioural matters, rather than a claim for breach of contract.
162 I do not think it is correct to dismiss the applicant’s proposed amendments in this way. As I understand the proposed pleading, the applicant contends that she has been victimized within the meaning of s 94 of the SDA and that the victimization also amounts to a breach of the implied term of trust and confidence in her contract. It is difficult to see why it was considered necessary to proceed in this way and what practical benefit is achieved by it. Nevertheless, as I have found that the claim for breach of the implied term is arguable, the scope of it is for another day.
163 Section 94 of the SDA is in the following terms:
Victimisation
(1) A person shall not commit an act of victimization against another person.
Penalty:
(a) in the case of a natural person - 25 penalty units or imprisonment for 3 months, or both; or
(b) in the case of a body corporate - 100 penalty units.
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.
164 Thus, to establish that the respondent committed an act of victimization the applicant will need to prove that the respondent subjected her to a detriment or threatened to do so because, amongst other things, she had made or proposed to make a complaint under the SDA or under the AHRC Act or she had alleged that someone had engaged in unlawful discrimination (including sexual harassment) or the respondent believed she had made or proposed to make such a complaint or allegation. A detriment is no more than a disadvantage, albeit that the disadvantage must be one of substance: cf O’Callaghan v Loder [1983] 3 NSWLR 89 at 105D-E.
165 If the matters set out in paragraphs 68 are the acts said to constitute the detriment, some of them could not conceivably amount to victimization. Most of the new complaints relate to the way in which the respondent investigated the complaint. Counsel for the respondent repeatedly argued that the amended pleading failed to connect the conduct complained of with unlawful discrimination. I am sympathetic to the respondent’s argument. This proceeding should not be used as a vehicle for the applicant to air all her grievances against the respondent and any person (corporate or natural) having any connection with it. Whilst it is true that s 46PR provides that in proceedings under Division 2 of the AHRC Act (which includes s 46PO) the Court is not bound by technicalities or legal forms (subject to Chapter III of the Constitution), it does not authorise a wide-ranging enquiry into employee grievances. But at this stage of the proceeding some latitude must be given.
166 Once more, no explanation was offered for these late amendments. No suggestion was made that the information contained in them emerged from any failure on the part of the respondent to comply with the discovery regime or any other default on the respondent’s part. I take these matters into account in deciding whether to exercise my discretion in the applicant’s favour.
167 The amendments to the opening words of paragraph 68 can be dealt with swiftly. The words “of the Respondent” are unnecessary and unhelpful. I will not permit the amendment. Neither will I permit the amendment to add “but not limited to”. The applicant has had sufficient opportunity to put her case. She should not be allowed to keep her options open. It would put the respondent in an impossible position.
168 The amendment to subparagraph (h) does not fall into this category and is less vague than what is already pleaded. I will allow it, although its connection with the claim of victimization is opaque. I will also allow the amendments to subparagraph (j), which the respondent should be able to meet and about which no specific submission was made. The amendments to particulars (k) and (l) fall into the same category and I will allow them, although, again, I have difficulty understanding how they are connected with the victimization claim. Particulars (m) and (n) are sufficiently covered by the complaint to HREOC and I will allow them. I allow (v) because of an implication from paragraph 14 of Mr Blomfield’s statement of 29 May and 8 June 2007 about the applicant’s mental state. I allow (w) because it appears to have been raised in the HREOC statement. I also allow particular (x) in so far as it relates to the particulars I will permit, as the respondent should have no appreciable difficulty meeting it.
169 But I reject the remaining subparagraphs:
(p) and (q) as they are too vague, call for more particulars, would put the respondent to additional investigations at a late stage in the proceeding and, with the passage of time, may be impossible to properly investigate, let alone defend.
(s) in the absence of an explanation and the failure to show that the respondent would not be prejudiced by the delay in the absence of any reference in the schedule to the applicant’s second set of submissions to any part of the HREOC statement to show that the respondent has had a fair opportunity to meet the allegation.
170 I now turn to paragraph 69, which is entirely new, and for which, once again, no explanation has been provided. Paragraph 69 begins with the words:
From in or about June 2006, the Respondent’s department of Human Resources engaged in behaviours in further breach of the October 2006 Contract, including but not limited to:
171 There follows a catalogue of 26 new complaints and the so-called particulars are no more than a general reference to the HREOC statement. The Department, of course, is not a legal entity. The alleged culprits in the Department are not identified. The prejudice to the respondent in investigating these allegations at this stage when it should be preparing for trial is obvious. Although the HREOC complaint was wide-ranging, the applicant chose to limit her application to this Court. To expand it in this way so close to trial would not promote the overarching purpose. I disallow the amendments proposed in paragraph 69.
172 The proposal to add new paragraphs 70, 71 and 72 were withdrawn.
173 The final amendments in this category are to paragraph 73. It now reads, with the amendments marked up:
Mr Blomfield and/or Mr Selvarajah The Respondent’s General Management, Executive General Management, the Executive of its parent company and subsidiaries, the Non-Executive Directors of the Boards of its parent company and subsidiaries, and the employees of its department of Human Resources which includes its department of Workers Compensation, engaged in the Victimising Behaviour because the Applicant:
(a) made a complaint about the [X] Behaviour; and/or
(b) rejected the [X] Behaviour; and/or
(c) made a complaint about the Blomfield behaviour; and/or
(d) rejected the Blomfield behaviour; and/or
(e) relied upon the dispute procedure provision of the Contract.
174 I allow the amendment with the exception of (e) as no claim of victimization could be made out on the basis that the applicant relied upon the dispute procedure provision of the contract. In other words, the allegation falls outside the scope of s 94 of the SDA.
Category 4: the new causes of action
175 The applicant seeks to add causes of action for injurious falsehood and breach of privacy.
176 In written submissions prepared by the applicant’s solicitor, filed on 26 March 2010, she suggested that the applicant had explained the delay in adding these two causes of action in her affidavit, affirmed on 15 February 2010, supporting the motion for leave to amend. That explanation was said to be that the applicant’s claim was based on documents discovered to her on 19 January 2010 and 5 February 2010. In the end, the submission was that “a significant portion of the documents on which the cause of action is founded were discovered in January and February 2010”.
177 A similar argument was put in submissions prepared by the applicant’s solicitor, contained in a folder of documents filed on 23 February 2010, with an additional submission that I should have regard to the fact that the applicant was unrepresented between 22 December 2009 and 3 February 2010. That folder contained a large number of documents said to have been discovered by the respondent on 19 January, 25 January and 5 February 2010. The applicant relied on those documents as material supporting the new claims, but they were never put in to evidence. The applicant did not tender any of them. Some, however, were tendered by the respondent.
178 The affidavit evidence to which the applicant’s solicitor referred in her submissions and which appears to have formed the basis of all the submissions to explain the delay with respect to the category 4 amendments is irrelevant. Mr King chose not to read the relevant parts of the affidavit on the hearing of the motion but in her oral evidence it appeared to be her position that late discovery explained the delay.
179 In his “concluding submissions” filed on 11 May 2010, Mr King asserted that “the Respondent”, meaning the respondent’s counsel, “appears to accept that the Applicant did not have, prior to 15 June 2009, following tranche 1 of the Respondent’s discovery, sufficient or full knowledge of the true nature of the breaches of confidence and privacy that comprise the cause of action”. [Emphasis added.]
180 The transcript reference he gave to support that submission does not bear it out. At that point in the transcript (transcript of 11 March, page 66, line 30), the applicant agreed that she would have been aware of the particulars to paragraph 106 by 15 June 2009. But, even if Mr King’s submission were correct, the delay would still be substantial
181 Mr King further asserted that, in fact, some of the new particulars to the claim of breach of privacy were based on documents only discovered to the applicant on 6 April 2010.
182 The applicant submitted:
(a) There was therefore no delay in making the amendment;
(b) There can be no prejudice to the respondent if the amendment is allowed, as the respondent is the source of the discovered material; and
(c) “Absent these proceedings, it would otherwise be open to the Applicant to commence fresh proceedings” in a different jurisdiction and “considerations of convenience, efficiency and cost” mean that “it is preferable for all matters to be dealt with concurrently, particularly as the parties are identical and the material which the Applicant relies on ultimately arise[sic] from the current proceedings”.
183 There are a number of problems with these submissions.
184 The first proposition is a non sequitur. Late discovery may explain the delay in making the allegations; it does not mean there is no delay. Similarly, the fact that the material relied upon to support the new causes of action may have come from the respondent does not necessarily mean there can be no prejudice to it from now having to meet them. The third proposition is specious. Having regard to the history of this proceeding it would defy the overarching purpose to permit these amendments to be made. It is neither convenient, nor is it efficient or cost-effective, to incorporate into the existing proceeding these additional causes of action. Despite the applicant’s submission to the contrary, there are important differences between the current claims and the new claims and different evidence will be required to prove them. It is also abundantly clear that additional witnesses will have to be called to meet them.
185 French CJ had something to say about an argument of this kind in Aon at [31]ff:
[31] … The requirement to make amendments for the purpose of deciding “the real issues in the proceeding” does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself.
[32] The requirement under r 501(c) to avoid a multiplicity of proceedings is to be understood as operating within the framework of an ordered progression to a fixed trial date. It does not oblige the court to accept the addition of new claims at the last moment before trial, on the basis that if they are not allowed there might be subsequent proceedings in which those claims are raised. The steps which r 501(c) requires to be taken to avoid multiple proceedings are “all necessary amendments”. The Court had no basis for inferring that, absent the amendments, there would be further proceedings.
…
[34] … A court faced with a late amendment seeking to raise new claims and the in terrorem prediction that a multiplicity of proceedings may follow if the amendment is not allowed, is entitled to have regard to the barriers to the implementation of suggestions of that kind.
[35] … It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice.
186 The same observations could be made here.
187 I will deal with the two causes of action which the applicant seeks to introduce into the present proceedings separately. But first it is necessary to turn to the rules about joinder of causes of action.
188 Subject to O 6 r 6, O 6 r 1 of the Rules provides that an applicant may claim relief in any proceeding in respect of more than one cause of action. Order 6 r 6 provides that where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit. The Court’s discretion under this rule is broad and should be exercised so as to promote a just resolution of the parties’ disputes, while taking into account the importance of limiting the costs and delay of the litigation: Australian Securities and Investments Commission v Axis International Management Pty Ltd [2009] FCA 250 at [9] per Gilmour J, citing Bishop v Bridgelands Securities (1990) 25 FCR 311. Considerations of cost and delay, I should add, apply with even more force in the light of the Parliament’s express direction in ss 37M and 37N of the FCA Act.
189 The applicant submits that the joinder of these causes of action will neither complicate nor significantly delay the trial “in any respect which cannot be addressed appropriately by proper directions of this Court made under the Act section 37P and having regard to the duties of the lawyers in [sic] the Court under section 37N”.
190 She also argues that the additional causes of action “arise out of the same sub-stratum of facts and the determination of such will involve the same evidence and witnesses as will be called for the original causes of action”.
191 True it has been said that, ordinarily, where an applicant seeks leave to join another party or to amend his or her statement of claim by including a new cause of action, joinder will be allowed if the cause of action is arguable, that is, where it is not obviously futile, and where substantial injustice would occur that costs would not rectify: e.g. Advanced Switching Services Pty Ltd v State Bank of New South Wales t/as Colonial State Bank (2001) ATPR ¶41-848 at 43,486 and in Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 852 at [11]-[12]. In my view, however, the landscape has entirely changed with the 2009 amendments to the FCA Act and the decision in Aon and observations of this kind are no longer helpful.
The claim for injurious falsehood
192 This claim is made in paragraphs 91-101 of the proposed statement of claim.
193 The applicant contended in her written submissions that the material discovered to her in the course of these proceedings:
depicts communications between the Respondent, its servants or agents, and third parties, which were made maliciously, were false and caused special damage. It is not necessary for the Court to determine the merits of the substantive matter on this application. Rather, the Applicant contends that evidence has become available during the course of these proceedings which supports the new cause of action. The Applicant seeks the leave of the Court pursuant to Rule 13.2(7)(b).
194 In one set of submissions Mr King went so far as to assert:
The late discovery of the Respondent makes it clear that it conducted a secret campaign to media outlets, other Banks and possibly major clients with a view to denigrating the Applicant and exculpating itself.
195 This submission went far beyond what any of the documents I have seen could possibly support.
196 It is true that the Court is not required to determine the merits of the proposed new pleading. But, as the applicant bears the onus of showing why leave should be granted, the merits of the claim are not irrelevant. The Court would not grant leave, for example, if it were futile to do so: see, e.g. Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (Haines), at 407G, comparing General Steel. Consequently, it was in the applicant’s interests to point at least to the availability of evidence to support the claim. This she has failed to do. No evidence was tendered to show that the applicant had an arguable case. In order to succeed she would have to prove, amongst other things, that the alleged falsehoods were published maliciously and that the publication resulted in actual damage: Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388 (Parsons) at [1], [52], [114] and [154]. Actual damage means “special” or particular damage (not general damages) and “[a]s much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable”: Ratcliffe v Evans [1892] 2 QB 524 at 532 per Bowen LJ.
197 The respondent submitted that this claim is based on conduct in which the respondent is alleged to have engaged in connection with a defamation proceeding Mr Blomfield brought in the NSW Supreme Court against Nationwide News Pty Limited (the Blomfield defamation suit). The respondent is not a party to that proceeding. That proceeding was triggered by the publication of two articles in April 2008 concerning the applicant’s allegations against Mr Blomfield. The submission appears to be correct for the most part, but not all the impugned conduct in the proposed pleading relates to the publications (paragraph 92(a), for example, is distinct from it) and some of it relates to the publication of the articles but not the proceedings.
198 The respondent argues that the pleading should not be allowed for a number of reasons, the most important of which are:
It is an abuse of process, primarily because of its overlap with a proceeding commenced in the NSW Supreme Court by the applicant alleging that the CBA and Barbara Chapman, one of its employees, defamed her.
The claim is not properly pleaded, for example: no particulars of malice are given and actual damage is not pleaded or not with sufficient precision to properly notify the respondent of the applicant’s case on damage;
The claim is “patently hopeless” as the applicant has not pointed to evidence capable of proving the material facts necessary to make out the cause of action, for example: there is no basis for arguing that the respondent is the publisher of documents or statements published in media outlets or by its parent company and, to give another example, the claim relies on a publication between two employees of one organisation, which is not capable of giving rise to an action in defamation or injurious falsehood;
Many of the documents referred to in the particulars are covered by absolute or qualified privilege, such as witness statements and pleadings;
A publication between two employees of one organisation will not give rise to an action in defamation or injurious falsehood;
Actual damage is not pleaded or not in such a way that suggests a link between the alleged falsehoods and special damage;
The claim relates to entirely different facts from those underlying the applicant’s case as currently pleaded and such a major change in the applicant’s case, which was not raised with the respondent before 22 January 2010, would lead to further substantial delay, for example because of the need for the respondent to gather and prepare new evidence;
There is no adequate explanation for the applicant’s delay, given that of the 24 distinct particulars, 13 are based on documents admittedly known to the applicant by September 2009 and five as early as April or May 2008.
199 To understand the claim and the resistance to it, it is necessary to refer to some of the documents upon which the claim is based. I note, however, that few of them found their way into evidence. Most were provided in a folder entitled “Applicant’s submissions” filed on 23 February 2010. Nevertheless, although not strictly before me, counsel for the respondent makes reference to some of them in her submissions, not taking the point that they were not in evidence. Accordingly, for the purpose of dealing fully with the applicant’s proposal, I have had regard to them.
200 On Monday 14 April 2008 the Sydney Morning Herald and The Age published articles containing the allegations the applicant made against Mr Blomfield and the CBA. The same day Barbara Chapman, Group Executive, Human Resources and Group Services for the CBA, wrote to the editor of the Herald and the Editor-in-Chief of The Age complaining about the articles, asserting that their publication was inappropriate, that it was an abrogation of the standards of journalism expected of the newspaper, that it denied natural justice to Messrs Blomfield and [X] and that it unfairly besmirched their reputations. She noted that the CBA had taken the applicant’s claims seriously, and that there had been an number of investigations into them, and in the letter to the Herald wrote:
The Bank has formed the considered view that her claims are unfounded. Accordingly, the Bank will strongly defend this matter and as part of its defence will say that:
▪ In early 2007, Ms Dye had been told by her manager that her performance was unsatisfactory.
▪ Ms Dye then initiated a complaint through the Bank’s Fair Treatment Review process. She did not raise any issue of sexual harassment. Her complaint was determined to be unfounded.
▪ In October 2007, Ms Dye asked the Bank to investigate her claims against Mr Blomfield. The Bank engaged an external person to conduct this investigation. The investigator found that there was “nothing to substantiate [Ms] Dye’s allegations of inappropriate behaviour”. Further, a number of witnesses expressed their high regard for Michael Blomfield’s character and care for other people. Mr Blomfield has left the Bank. However, his departure was not related to the claims made by Ms Dye. The Bank has informed Mr Blomfield that it continues to support him and will assist him in defending any claims which Ms Dye may make against them.
201 The letter to the Age was in similar terms.
202 The same day Ms Chapman circulated to CBA Group Executives, CBA Executive General Managers and CBA General Managers an email in which she wrote:
You may have seen an article that appeared in this morning’s Sydney Morning Herald and The Age newspapers regarding allegations made by a former PBS staff member, Vivienne Dye against Michael Blomfield and [X].
The Group takes any claims of inappropriate behaviour very seriously. When these allegations initially came to light, the matter was investigated internally swiftly and thoroughly. We are satisfied that Ms Dye’s allegations are unfounded and without basis.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission. We feel this approach has removed the basis of fair play and not afforded Michael Blomfield and [X] the opportunity to defend themselves.
We are writing to the newspapers involved today to express our concern at their role in publishing unfounded information aimed to damage the reputation of our two former employees.
The matter and allegations against the two former staff members will be strongly defended in the Commission.
203 Ralph Norris, the Chief Executive Officer of the CBA, circulated a similar email.
204 On 15 April 2008 Bryan Fitzgerald, General Manager, Media and Issues Management, Marketing and Communications, responded to an enquiry from a Daily Telegraph journalist (Heath Aston) about the applicant’s allegations in the same terms as Ms Chapman had written to the editors of the Fairfax newspapers.
205 On 16 April 2008 lengthy verbatim excerpts from the applicant’s HREOC statement appeared on the Daily Telegraph’s website and an article under Heath Aston’s by-line appeared on page seven of the paper containing some of the applicant’s allegations, apparently drawn from the HREOC statement, and reporting the bank’s position and [X]’s denial. It also included the following passages:
Pending the result of the HREOC investigation, Ms Dye intends to sue for $1.125 million for lost income, humiliation and suffering.
The Daily Telegraph understands the bank offered $50,000 to settle before Ms Dye took the complaint to HREOC.
206 The source for these comments, unsurprisingly perhaps, was not identified. The article included a denial on the part of the CBA that it had offered a settlement.
207 This article prompted Ms Chapman to send an email to CBA General Managers, Executive General Managers and Group Executives complaining that the Telegraph had run “a salacious and sensational story about allegations of sexual harassment against two former members of the Group, without any regard for the facts”. That was followed by a statement to the effect that the organisation takes the issue of sexual harassment “very, very seriously” but that it also values “fairness, honesty and an individual’s right to natural justice”. She noted that it had taken the allegations the applicant made “very seriously” when they were raised and “[a] series of in-depth investigations” were undertaken and “the claims were found to be unsubstantiated”. She went on to describe the steps the Group was taking to protect the reputations of the two men concerned and to express her disappointment that the applicant appeared to have chosen to fight the case in the media rather than awaiting the outcome of the HREOC process.
208 The same day the General Manager, Media and Issues Management, Marketing and Communications for the Commonwealth Banking Group (Bryan Fitzgerald) sent an email to the Telegraph answering a series of questions put to him on behalf of the journalist (Heath Aston) who wrote the article. In it he reported that [X] denied he had:
propositioned the applicant for sex;
asked her whether he could bring sex toys with him on a business trip to New Zealand;
before the trip commented about her physical appearance;
made sexual advances towards her during the trip;
ignored and isolated her at work after she had rejected his advances.
209 He also reported Mr Blomfield’s denials that he had:
ever made any sexual advances towards the applicant;
leant towards her and tried to kiss and hug her for an extended period of time after walking her home following after-work drinks on 15 June 2006;
subjecting her to a period of alienation in the office after she had rejected his advances.
210 On behalf of the Bank Mr Fitzgerald also denied that the applicant had been sacked; stating she had been retrenched after her position was abolished and received full payment of all her entitlements. He also explained that her performance had been satisfactory for part of a performance review period and unsatisfactory for another part.
211 Some of that information was published by The Telegraph in one form or another on 17 April 2008.
212 Vanda Carson, a Fairfax journalist, enquired about an allegation against [X] published in The Age which Mr Fitzgerald told her was unknown to the CBA until the HREOC claim was lodged. He also forwarded to her a copy of Ms Chapman’s internal email of 16 April and his internal email of 14 April.
213 The following day an article appeared in the Fairfax press under Vanda Carson’s by-line reporting that the applicant’s “lawyer”, Peter Rochfort, had confirmed that her claim against the bank was not her first legal claim for compensation, that she had received a $20,000 payout from her former employer, Vodafone, after alleging she had been bullied by two female colleagues, as part of a confidential mediation, but declined to confirm that she spent half the payout on breast implants. The same day The Daily Telegraph reported that the applicant had “hit out” against “rumours posted on the internet” that she had left her job with Vodafone “with a hefty payout for harassment”. On 19 April it rubbished the Herald story, quoting a spokesperson from Vodafone as saying that her employment was terminated by mutual agreement, that all payments were part of her contract and affirming that the company respected her privacy and would make no further comment. It also reported Mr Rochfort’s intention to take legal action against the Herald over the issue.
214 On 7 May 2008 the Fairfax media published fulsome apologies to Messrs Blomfield and [X] accepting that the allegations published about them “are untested and are regarded as false not only by Mr Blomfield and [X] but by the bank which has thoroughly investigated them”.
215 On 31 July 2008 the Fairfax media carried another story under Ms Carson’s by-line reporting on the filing of the application in this Court. The article noted the applicant’s allegations and the defence and reported comments by Mr Fitzgerald that the Bank had “previously strongly refuted all of the allegations made by Ms Dye” and that “we are not prepared to mediate because we believe there is no case to answer. We will continue to defend our position and support our staff and former staff”. On 6 October 2008 it followed up with a report of the defence the respondent filed in these proceedings.
216 Other publications are also particularised but, as in the case of the documents I have discussed above, the documents said to contain the statements were not tendered and, unlike the others, were not attached to the submissions either.
217 The first allegation appears in paragraph 91:
From in or about May 2007, and ongoing, the applicant was injured in her trade and profession by malicious falsehoods which were made of or concerning her by the Respondent, its servants, officers and/or agents.
218 The alleged falsehoods are pleaded in this way (“particulars” omitted):
[92] The Respondent’s falsehoods include but are not limited to stating:
(a) that the Applicant’s performance was unsatisfactory, she was on a performance management program, being performance monitored and/or being managed for non-performance during her employment with the Respondent, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent.
[The only particular that is pressed is in these terms:
The statements of the respondent to the NSW Workcover Fraud Investigation Branch dated on or around November to December 2007.]
(b) that the Applicant’s allegations in respect of the [X] Behaviour, the Blomfield Behaviour and the Victimising Behaviour were false, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent [a non sequitur].
(c) that the Applicant did not raise any of the allegations concerning the [X] Behaviour, the Blomfield Behaviour and/or the Victimising Behaviour when her work performance as a Marketing and Business Analyst was declared unsatisfactory in early 2007, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008; and the statement is also false because the Applicant is a qualified and competent worker, who maintained the highest performance rating during her employment with the Respondent.
(d) that the Applicant’s work performance as a Marketing and Business Analyst was declared unsatisfactory and/or that her work performance was unsatisfactory in early 2007, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent.
(e) that the Applicant first notified the Respondent of the Blomfield Behaviour in January 2008, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008.
(f) that [the] Applicant first notified the Respondent of the [X] Behaviour in February 2008, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008.
(g) that the Applicant’s allegations are unfounded, unsubstantiated and/or baseless because the Respondent conducted a series of in-depth, swift and/or thorough internal and/or external investigations, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant has never been investigated by the Respondent about the [X] Behaviour, the Blomfield Behaviour or the Victimisation Behaviour and the statement is false because [X] and Mr Blomfield have provided a series of written admissions regarding the [X] Behaviour, the Blomfield Behaviour and the Victimisation Behaviour which have been in the possession of the Respondent since 2008, 2007 and some since 2006.
(h) that the Applicant chose to fight the issue in the media, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Respondent conducted a media campaign during 2008, 2009 and ongoing which harmed the Applicant, the Applicant did not.
(i) that the Applicant conducted herself in a manner which warranted being sued by the Respondent, its servants, officers and/or agents, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statements are false because the Applicant has not conducted herself in a manner which warrants being sued by the Respondent nor any of its servants, officers or agents nor has the Applicant been sued.
(j) that the Applicant’s complaints are “scurrilous” and have “besmirched” and/or “defamed” the reputations of Mr Blomfield and [X], which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant’s allegations regarding the [X] Behaviour, the Blomfield Behaviour and the Victimising Behaviour are not defamatory, they are true.
(k) that the Applicant wore a fur highlighted G string showing about her skirt to a company event, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant did not wear a fur-highlighted G-string to a company event, nor was the Applicant wearing a skirt.
219 I pause to note that the words in bold were not in the proposed amended pleading attached to the applicant’s notice of motion and appear to have been added after the hearing on the motion was concluded and without notice or explanation
220 The statements are alleged to have been published to various third parties.
221 Not all of the proposed “particulars” were pressed. Once again, however, none of the matters listed as “particulars” meets that description. They all seem to be references to the publications in which the alleged false statements appeared.
222 On the second day of the hearing of the applicant’s motion for leave to amend, Mr King handed up a document setting out two further “particulars” that the applicant wished to add to paragraph 92 (in fact, they were two further subparagraphs and thus purported to be pleaded as material facts). They were provided to counsel for the respondent minutes before the hearing commenced that day. Mr King sought to explain this further delay by claiming that the additional particulars arose from documents only recently provided by the respondent in further discovery. I refused leave in relation to one “particular” during the hearing, but directed the applicant to incorporate the other in the proposed amended statement of claim:
(m) That the Applicant exhibited predatory behaviour towards Mr Blomfield, which is a false assertion and the falsehood was published with malice…. because the Applicant did not exhibit predatory behaviour towards Mr Blomfield. [particulars omitted]
223 There was no sub-paragraph (l).
224 In paragraph 96 the applicant also wishes to plead:
Further and in the alternative, in or about May 2008, and ongoing, the Applicant was injured in her trade and profession by malicious falsehoods made of or concerning her by the Respondent, its servants, officers and/or agents by way of action brought against Nationwide News Limited for its publication of the allegations set out above at paragraphs 18 and 68.
225 Once again, the pleading is drafted in an inclusive, not exhaustive, fashion so that -rather than enabling the issues to be defined - the pleader proposes no limits to the allegations he or she would make.
226 The nature of the damage is pleaded in paragraphs 99 to 101 only in the most general terms where it concerns economic loss and also claims “an unspecified quantum of general damages”. It is particularised as:
(i) Statement of financial loss to be provided by the Applicant; and
(ii) Expert medical evidence to be provided.
227 This is entirely unsatisfactory, particularly at this late stage of the proceeding and when the applicant is seeking an indulgence from the Court. It does not have the requisite level of particularity. There is a great deal of ambiguity about the meaning of special damage: see the discussion in McGregor on Damages, 18th edition (2009) [1-029-1-034] But one thing is certain. It does not include general damages. What should have been particularised is the actual damage to “her trade and profession” the applicant alleges was of a kind intended or “the natural and probable result” of the false statement: see Parsons at [14] per Gleeson CJ, [75]-[76] per Gummow J, and [114] per Kirby J. What is the loss the applicant claims she suffered as a result of the statements? The Court was not taken to any material to show that evidence was available to prove either actual damage or the necessary causal relationship between any such damage and the alleged injurious falsehoods.
228 There are other difficulties with the pleading.
229 First, as with defamation, the representation in an injurious falsehood claim must be pleaded with precision: Haines at 417. This means that the parts of the publications which have been particularised and are said to contain the false representations must be identified: Hewitt v ATP Tour Inc [2004] SASC 286 at [65]. It is not good enough to make an allegation and list as particulars a series of documents, expecting the respondent to work out for itself where the false statements are allegedly made and divine in what respects they are false, which is what the applicant has done here.
230 Secondly, 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. As Hunt CJ at CL explained in Haines, giving particulars of special damages under a general claim for damages is not the same thing:
The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation (Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694) or feelings (Fielding v Variety Inc [1967] 2 QB 841 at 850), damages for injurious falsehood would appear to be restricted to the recovery of that actual damage: ibid at 850.
231 The respondent argues that actual damage must be proved and pleaded with respect to each publication, although no authority for that proposition was cited. I doubt that is right. If the applicant’s case is that a series of publications contained false representations made maliciously I see no reason in principle why the tort would not be available if the combined effect of them caused actual damage.
232 Thirdly, just as in Haines, the proposed amended statement of claim fails to give proper particulars by which the respondent could know the basis upon which it was responsible for the specific publications identified in the pleading. In this case the applicant has chosen not to sue the CBA, whose employees were the makers of most, if not all, of the statements the subject of her complaint.
233 Fourthly, malice is pleaded in paragraph 95 in a way I regard as wholly unsatisfactory. This is the proposed pleading:
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.
234 An allegation of malice is a serious one. The High Court said in Clyne v NSW Bar Association (1960) 104 CLR 186 (Clyne) at 200-1:
Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.
235 Clyne was not concerned with pleadings but the same principle underpins the professional conduct rules, which impose restrictions on the making of allegations of this kind. See, for example, r 37 of the NSW Barristers’ Rules and r A37 of the Revised Professional Conduct and Practice Rules 1995 (Solicitors’ Rules). It is inappropriate for such serious allegations to be made in the wide, inclusive terms of paragraph 95. As Harper J said of allegations of fraud in NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 at [6] in a passage extracted in Riley’s Solicitors’ Manual:
Allegations of fraud should only be made on the basis of evidence, worthy of serious consideration… Loose allegations of fraud are a blot on the adversarial system, and may — where, for example, they are made in terrorem — amount to an abuse of process.
236 In my view the pleading verges on the embarrassing. It seeks to leave open the possibility of other improper motives. It fails to identify the actual harm caused to the applicant. Numerous individuals are said to have published the allegedly false statements. The applicant did not point to any material to show that she could prove that each or any of those individuals was by a desire to do her harm or by any other improper purpose. In written submissions dated 10 March 2010 counsel for the applicant submitted:
The late discovery of the Respondent makes it clear that it conducted a secret campaign to media outlets, other Banks and possibly major clients with a view to denigrating the Applicant and exculpating itself.
237 I infer from this submission and the absence of any other indication that the Applicant’s case is that malice is apparent on the face of the documents. I can see no justification for that conclusion, however, on the face of any of the documents that were presented to me.
238 In its written submissions the respondent contends (in effect) that malice could not be proved. It offers as an example the internal email from Barbara Chapman dated 16 April 2008, which the applicant puts forward as a “particular” to paragraph 92(g), circulated to CBA General Managers, Executive General Managers and Group Executives. According to the submission,
[t]he email relates to an article in the Daily Telegraph concerning Ms Dye’s allegations (see the email at Schedule 6, page 4 to the Applicant’s written submissions) [which was not tendered]. On a plain reading of that email, its purpose was to address the partiality of the Daily Telegraph article. The email does not deny Ms Dye’s allegations. Yet the Applicant seeks leave to raise an argument that the email falsely claimed her allegations were unfounded and that, in doing so, the Respondent was actuated by malice and caused her actual damage. Any falsity contained within the email could not on any reading of it have related to the Applicant’s allegations.
239 I reject the submission. The email, which expresses indignation at what are described as “salacious and sensational” stories about allegations of sexual harassment against two former members of the CBA Group “without any regard for the facts” includes the assertion:
The allegations made by Vivienne Dye against Michael Blomfield and [X] were taken very seriously when they were raised. A series of in-depth investigations were undertaken and the claims were found to be unsubstantiated.
240 It is difficult to see the distinction between a statement that the applicant’s claims were “found to be unsubstantiated” and a statement that “her allegations were unfounded”. And the email is plainly concerned with the applicant’s allegations.
241 Nevertheless, there is nothing in it to suggest malice. The passage quoted in [238] above is followed by this statement:
The steps we are taking today to protect the reputations of [X] and Michael include:
• Trying to have the offending material removed;
• Working to stop it being spread further;
• Supporting them in considering what action they would like to take against Vivienne Dye and her adviser.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission.
242 Some of the contents of this email are replicated in others (including in an email to a journalist). The criticism of the newspaper turned on its presentation of one side of the case. The concern of the email is with vindicating the reputations of the individuals against whom the applicant made allegations, not with harming the applicant. It is defensive in its approach, not vindictive. The applicant pointed to no other material upon which it intended to rely at the hearing to demonstrate the ulterior purpose relied upon in the proposed amended statement of claim. While in the process of attempting to vindicate the reputation of others, the applicant’s reputation might be harmed, on the material the applicant proffered on this application I cannot see how she could show that harm to her was the dominant purpose of the publications.
243 Paragraph 96 and 97 are in the following terms:
[96] Further and in the alternative, in or about May 2008 and ongoing, the Applicant was injured in her trade and profession by malicious falsehoods made of or concerning her by the Respondent, its servants, officers and/or agents by way of action brought against Nationwide News Limited for its publication of the allegations set out above at paragraph 18 and 68.
[97] The Applicant claims aggravated relief against each injurious falsehood made or put to the Applicant by Mr Blomfield, those acting for him and or any servant, officer or agent of the Respondent during the course of Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited Anors [sic], in which she was subpoenaed to give evidence:
Particulars
(i) the purported facts and imputations contained within the Statement of Claim submitted by the Plaintiff to the Supreme Court of New South Wales for the purposes of Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited;
(ii) the purported facts contained within the Reply to Defence submitted by the Plaintiff to the Supreme Court of New South Wales for the purposes of Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited;
(iii) the Transcript of the Cross Examination of Vivienne Dye taken during Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited; and
(iv) Media coverage of or concerning Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited.
244 I note that the word “all” appeared as the first word in particular (iv) in the proposed amended statement of claim but had been removed from the version filed after the conclusion of the hearing on the motion, although this further amendment was not discussed at the hearing or notified to the court.
245 Paragraphs 18 and 68 relate to the allegations of sexual discrimination and harassment the applicant makes in this proceeding against [X] and allegations of “victimisation/harassment” against Messrs Blomfield and Selvarajah. The reference to “action brought against Nationwide News Limited” is presumably a reference to the defamation case Mr Blomfield brought and which is the subject of the particulars in paragraph 97. I do not know what the applicant means by “aggravated relief”. Although she makes a claim for damages in paragraphs 99-101, she does not include in it a claim for aggravated damages. None of the “particulars” answers that description.
246 This claim is audacious, to say the least. It offends the long-established immunity from suit for witnesses and advocates in legal proceedings.
247 In the case of witnesses the High Court in D’Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]-[40] affirmed the long-standing principle that a witness cannot be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. It also emphasised that a witness’s immunity from suit extends to out-of-court conduct that is intimately connected with the giving of evidence in court, citing Watson v M’Ewan [1905] AC 480. And it declined to interfere with the established law that an advocate could not be sued. Gleeson CJ, Gummow, Hayne and Heydon JJ said at [39] (citations omitted):
From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.
248 Order 11 r 16 provides that:
Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of process of the Court;
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
249 The policy behind the courts’ power to stay or dismiss proceedings as an abuse of process is the prevention of waste of judicial resources and their use for ulterior purposes: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.
250 I have no doubt that paragraphs 96 and 97 would be struck out as an abuse of process if they had been included in the statement of claim that has been filed.
251 The question remains about what is to be done about the other paragraphs.
252 It is well established that if there is a real question, whether of fact or law, to be tried and the rights of the parties depend on it, then the court is not entitled to summarily intervene: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91; Webster v Lampard (1993) 177 CLR 598 (Webster v Lampard) at 602-603. As Mason CJ, Deane and Dawson JJ emphasised in Webster v Lampard at 603: “[n]owhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact”.
253 In General Steel Barwick CJ said at 129:
[T]he plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action — if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal — is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
254 But this is an application for leave to amend to add a cause of action, not an application to strike out pleadings. Even if an allegation withstands the General Steel test, it may not serve the overarching purpose to allow it. That said, if the applicant cannot show that she passes the General Steel test the amendment must be refused. On the material I have seen, I do not believe she can.
255 In any event, I do not think the joinder is justified. The joinder of this new cause of action would certainly complicate the proceedings and prolong, if not delay, the trial. There is a prospect that the existing trial dates would have to be vacated – for a third time. The respondent should not be distracted from preparing for trial by the need to seek further particulars, administer interrogatories or interview additional witnesses. If the new cause of action were joined, an inquiry would be necessary into the motives of at least six individuals, none of whom it appears would be likely to be witnesses in the trial on the current pleadings.
256 In addition, the applicant’s proposal is to make the respondent liable for the conduct of employees of the CBA, the respondent’s parent company. The basis of the legal relationship is not particularised. On the other hand, on 21 April 2009 the applicant commenced proceedings for defamation in the NSW Supreme Court against the CBA and Barbara Chapman. Those proceedings are yet to be heard. There is a closer connection between them and the injurious falsehood claim than there is with the present proceeding in this Court, not least because the relevant parties have been sued. The respondent contends that by these amendments the applicant seeks to make a number of allegations that are similar, if not identical, to allegations made in the defamation proceedings she has commenced in the NSW Supreme Court. For this reason it contends that the proposed amendment is an abuse of process. The pleadings in the Supreme Court were annexed to two affidavits of Ms Ferrier read on the motion.
257 First, the respondent points to what it says is “clear overlap” between the subject matter of the Supreme Court proceeding and the proposed injurious falsehood amendments. For example, in this case the applicant seeks to allege that the respondent uttered malicious falsehoods concerning the applicant’s allegations, that is that they were unfounded on the basis of its investigations: proposed paragraphs 91, 92(g). In the Supreme Court proceeding, the applicant alleges that she was defamed by the defendants because there was an imputation that she had fabricated allegations of sexual harassment (see paragraphs 10, 12(b) and (c), 13 (b) and (c)).
258 Secondly, it points out that the damages claims in both are similar. Although the proposal here in relation to the cause of action for injurious falsehood is to compensate the applicant for injury to her “trade and profession” and the defamation proceedings are concerned with damage to her reputation, in the Supreme Court proceedings she also seeks damages for “general loss of business and custom”.
259 Thirdly, it submits that it is clear from the amended defence filed in the Supreme Court, which pleads truth, that the publications pleaded in the Supreme Court proceeding are the same as those pleaded in the proposed amendments in this case (see paragraph 13 of the Amended Defence and paras 92(e), (g)).
260 The first publication with which the statement of claim in the Supreme Court proceeding is concerned is an email from Barbara Chapman sent on 16 April 2008 to Group Executive HR and Group Services. That email is listed as a “particular” to subparagraph 92(g) in the proposed amended statement of claim. Two of the four defamatory imputations alleged to arise from that email are the same as the matters pleaded in subparagraph 92(d) of the proposed amended statement of claim. The second publication is said to be a republication of the substance of that email in Fairfax Media publications. The third publication referred to in the Supreme Court pleading consists of two statements (set out in Schedule C to the amended statement of claim in that action) to the effect that:
(1) The CBA has investigated the applicant’s claims of sexual harassment and it has concluded that they are unfounded;
(2) The CBA will strongly defend this matter [the allegations the subject of the HREOC complaint and hence this proceeding] and will argue that the applicant did not even make these claims or raise any issue of sexual harassment until her work performance as a marketing and business analyst was declared to be unsatisfactory by the bank early last year.
261 The particulars of meaning pleaded in the Supreme Court include allegations that the applicant made false allegations that Messrs [X] and Blomfield sexually harassed her – the subject of subparagraph 92 (b) of the proposed amended statement of claim.
262 The allegation the applicant makes in subparagraph 92(c) of the proposed amendment statement of claim to the effect that the applicant did not raise any of her allegations about the conduct of the two men “when [sic] her work performance as a Marketing and Business Analyst was declared unsatisfactory in early 2007” is (but for the difference in prepositions) virtually identical to the imputation contained in Schedule C to the amended statement of claim in the Supreme Court proceedings where “until” appears in lieu of “when”.
263 Subparagraphs (e) and (f) of the proposed amended statement of claim are arguably another way of putting the allegation raised in paragraph 92(c).
264 Paragraph 92(i) of the proposed amended statement of claim contains the same allegation (malice aside) that is contained in the imputation in paragraph 7(c) of the Supreme Court statement of claim.
265 Indeed, the only substantive differences between the complaints in the proposed amended statement of claim and the Supreme Court pleadings relates to the allegations in subparagraphs 92(k) and (m). The relationship between Karen James, the “publisher” of the allegedly false assertion concerning the fur highlighted G-string the subject of the allegation in subparagraph 92(k), and the respondent is not pleaded. The vagueness of the so-called particulars of subparagraph 92(m) (which refer to “communications” “in and around certain dates” by Ms Chapman, Mr Fredericks and Mr Norris, none of whom it would appear was an employee of the respondent, give rise to other difficulties of the kind to which I have already referred.
266 The respondent’s contention is that it would be an abuse of process for the applicant to bring this proceeding. The applicant responded by pointing to the differences between the elements of the causes of action. But this submission avoided the central question of the similarity of the subject matter.
267 It is true that the causes of action are different in the two actions with which I am concerned. But the similarity of the issues for determination in the two proceedings means there is a prospect that this Court could reach different conclusions from the Supreme Court about the meanings of words in the same documents. As the defendants in the Supreme Court action have pleaded truth as a defence, that Court will have to rule on the truth of the same statements the applicant alleges in this proceeding are false. If this Court were to come to a different conclusion on either, there is a risk that the administration of justice would be brought into disrepute.
268 Unfortunately, neither party took the Court to any authority on the question. Some support for the respondent’s contention might be derived from Moore v Inglis (1976) 9 ALR 509 (Inglis) in which Mason J stayed the whole of proceedings commenced in the High Court as an abuse of process after similar proceedings had been instituted in the Supreme Court of the ACT. His Honour noted the authorities for the proposition that where two actions are brought by the same person against the same person in different courts governed by the same procedure and where the judgments are followed by the same remedies it is prima facie vexatious to bring the two actions where one will lie. In Inglis the parties were not identical and neither were the remedies and in the Supreme Court there was one action for conspiracy against five defendants and in the High Court the plaintiff alleged five separate conspiracies, although the object of the conspiracies was said to be identical in both actions. But his Honour considered the differences immaterial. His Honour observed (at 515):
Putting aside the inherent deficiencies in her claim to relief, deficiencies which would work against her case as much in this court as in the Supreme Court, there is no reason why the plaintiff could not, or cannot, seek relief by way of declaration and injunction in addition to, or in substitution of, damages in the action in the Supreme Court…
269 And on the question of parties, his Honour said that, if there was a sufficient basis for doing so (about which he expressed no opinion) the proceedings in the Supreme Court could be amended as to parties.
270 Ultimately, however, it is unnecessary for me to decide whether the proposed amendments would amount to an abuse of process and without the benefit of full argument on the question, I prefer not to. Regardless, it seems to me that the mere fact that the pending litigation in the Supreme Court concerns many of the same statements as those about which the applicant complains here is relevant to the question of whether it is just to grant leave to add the complaints in this proceeding. The applicant made no mention of the Supreme Court proceeding in her affidavit. Neither did she explain why she had not sought to sue for injurious falsehood in that proceeding. True it is that the respondent is not a party to the defamation proceeding. But Barbara Chapman, the maker of some of the statements in question is and the makers of many, if not most, of the others are employees of the CBA and not the respondent. In any event, the respondent could have been added as a party to the defamation suit. The nature of the damages sought in the Supreme Court is substantially the same as the nature of the damages sought here. If there were merit in the claim, it would make far more sense for the respondent to be joined to the litigation in the Supreme Court, than for this raft of new allegations to be made in this proceeding where trial dates have been fixed now for the third time, and where the proceeding in this Court is concerned with the vindication of very different rights and interests.
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.
272 For all these reasons I refuse leave to amend to plead the matters raised in paragraphs 91 to 101.
273 Paragraphs 102 to 110 relate a new claim for breach of contract, “breach of privacy” or “breach of confidence” collected under the rubric “breach of privacy”. It is based largely on alleged unauthorised disclosures of information the applicant claims was “confidential, personal or private”. The respondent submitted that the common law of Australia does not recognise a tort of privacy and there were so many other difficulties with the pleading that leave to make these amendments should be refused. After receiving those submissions, the applicant re-pleaded this part of her proposed amended statement of claim and on the second day of the hearing on the applicant’s motion presented the Court with a six page document setting out the new “breach of privacy” claim. The purpose of re-pleading, Mr King explained, was to remove “one or two infelicities” in the current pleading. This reflection on the state of the original set of amendments was a colossal understatement with the result that “infelicities” (and more substantive problems) still abound.
274 To appreciate the magnitude of the problem it is unfortunately necessary to set out the new amendments in full:
breach of privacy
[102] Further or in the alternative, it was an express term of the contract of employment alleged in paragraph 10 that in the event of the Applicant having any concern in relation to her employment with the Respondent, the Applicant “can raise in accordance with the Commsec’s Fair Treatment Policy in place from time to time” that concern.
[103] It was an express provision of the Fair Treatment Policy in place in or after June 2006 that information provided in the course of the Fair Treatment Review would be confidential and securely stored and available only to those directly involved in the process.
Particulars
(i) Commsec Confidentiality Policy
(A) All information provided in the course of the Fair Treatment Review will be restricted and available only to those directly involved in the process, or where there is a legal obligation to disclose.
(B) Specifics of individuals’ cases will only be made known to the reviewer, the team member, the Respondent(s) and the Fair Treatment and EAP Manager.
(C) The Fair treatment files will be securely stored by the fair treatment manager. Copies will not be kept on personnel files.
[104] Further or in the alternative, it was an express or implied term of the contract that the respondent’s Equal Opportunity Policy and the respondent’s Diversity Policy applied with respect to any grievance or action taken by the applicant in respect of her employment with the respondent.
[105] It was an express provision of the Respondent’s Diversity Policy and Equal Opportunity Policy required managers to maintain confidentiality. [sic]
Particulars
(i) Commsec Diversity Policy
(A) Managers are expected to maintain confidentiality. Confidentiality is imperative and must be maintained by everyone involved in any discrimination/harassment matter under investigation. Failure to do so may compromise an investigation, adversely impacting individuals involved and potentially result in victimisation or gossip. It may also result in disciplinary action against the manager, which could include termination of employment
(B) Managers are expected to support staff who are experiencing discrimination or harassment. Managers should be aware that harassment can go unreported because staff may:
(I) not know to whom they should go with the complaint;
(II) feel ashamed of what has happened to them;
(III) be afraid their word may not be accepted against the harassor’s or that others could say that they ‘asked for it’;
(IV) be worried because it may involve a senior member of staff;
(V) have concern about being victimised if they speak out;.
(C) It is most important employees know their manager will treat their requests for advice promptly, seriously, confidentially and sympathetically.
[106] Further and in the alternative a duty of confidence and/or privacy arose with respect to the conduct of the Respondent, its servants or agents towards he Applicant in or about June 2006 and ongoing not to use or disclose the confidential, personal and private information of the Applicant other than persons in the employ of the Respondent who had with the consent of the Applicant received such information for the purpose only of the Respondent’s grievance procedures in relation to the complaint of the Applicant in respect of [X] and Mr Blomfield referred to herein.
[107] In breach of contract and/or its duty of confidence and/or privacy the Respondent, by its servants or agents, used or disclosed the confidential, personal or private information of the Applicant or part thereof, provided to it other than for the purpose for which it was supplied without the consent of the Applicant.
Particulars
(i) The Respondent did not ensure that all information provided in the course of the grievance handling procedure was restricted and available only to those involved in the process;
(ii) The Respondent did not ensure that the specifics of the Applicant’s grievance were only made known to the reviewer, the Applicant, the Respondent and the fair treatment reviewer;
(iii) The Respondent did not securely store grievance handling files without retaining a copy on the Applicant’s personnel file;
(iv) The Respondent did not gather information nor restrict access to it to a needs to know basis;
(v) The Respondent did not securely store all files and data pertaining to the grievance handling procedure;
(vi) The Respondent did not destroy all copies of documentation relating to the grievance handling procedure once it had been closed;
(vii) The Respondent did not notify the Applicant of logistical constraints or expected delays in relation to the progress of her grievance.
[108] In further breach of contract and/or its duty of confidence and/or privacy, the Respondent disclosed the terms of the compromise reached between the Applicant and [X], and witnessed by Mr Carroll without the consent of the Applicant.
[109] In further breach of contract and/or its duty of confidence and/or privacy, the Respondent disclosed personal details about the Applicant without the Applicant’s consent.
Particulars
[110] In breach of its duty the Respondent disclosed personal details about the Applicant without the Applicant’s consent.
Particulars
(i) Collecting personal and sensitive data about the Applicant in an impermissable [sic] and intrusive way, without taking reasonable steps, when asked to let the Applicant know that is [sic] was collecting private and personal information about her and what sort of data it held, who was collecting it (the Respondent or the Respondent’s parent company), the purposes for which the date was collected, how it was collected, how it was held, used and disclosed, the organisations to which the Respondent usually discloses data of that kind, such as law firms, and the main consequences for either Applicant if all or part of the data, such as source material is not provided, at any other time prior to producing that data during discovery in current proceedings;
Particulars
(A) Diary note: 2 March 2006 Dye/Mason
(B) Diary note 5 March 2006: Selvarajah/Mason
(C) Diary note 5 March 2006: Mason Carroll
(D) Diary note 7 March 2006: Mason/Bevan
(E) Diary note 8 March 2006: Mason/Bayarda
(F) Diary note 8 march 2006: Mason/Tanner
(G) Diary note 15 March 2006: Mason/James
(H) Review of Staff complaint: Vivienne Dye (VLD) record of Interview: Michael Blomfield: Subject of Complaint- date: 26/11/07 – John Matthews
(I) Review of Staff Complaint: Vivienne Dye Record of Interview – David Reynolds: date: 27.11.07 – John Matthews
(J) Review of Staff Complaint: Vivienne Dye Record of Interview – Lynda Bayarda - date: 27.11.07 – John Matthews;
(K) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Peter Hill (PH) - Date: 27/11/07 – John Matthews;
(L) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Nick Elvin (NE) - Date: 28/11/07 – John Matthews;
(M) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Paul Rickard (PR) - Date: 28/11/07 – John Matthews;
(N) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Tina Puru (TP) - Date: 28/11/07 – John Matthews;
(O) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Arnie Selvarajah (AS): Witness - Date: 29/11/07 – John Matthews;
(P) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Karen James (KJ) - Date: 29/11/07 – John Matthews;
(Q) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Bernard Tanner (BT) - Date: 29/11/07 – John Matthews;
(R) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Suzie Toohey (ST) - Date: 29/11/07 – John Matthews;
(S) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Terry Mason (TM) - Date: 30/11/07 – John Matthews;
(T) Review of Staff Complaint: Vivienne Dye (VLD) Record of Interview - Edward Tait (ET) - Date: 04/12/07 – John Matthews;
(U) Profile of Vivienne Dye by the Respondent in or around 2008;
(V) Communications between Ms Bevan and the Respondent in or around June (undisclosed year);
(W) Communications between Ms James and the Respondent in or around May 2008;
(X) Communications between Mr Fitzgerald and Networks Seven, Nine and ten in or around 2008;
(Y) Communications between Ms Chapman and Fairfax in or around April 2008;
(Z) Communications between Ms Chapman and Nationwide News in or around April 2008;
(AA) Communications between Mr Fredericks and National Australia Bank in or around April 2008;
(BB) Communications between Mr Norris and the Board and Executive of the Commonwealth Bank of Australia in and around April 2008;
(CC) Communications between Ms James and the Respondent in or around May 2008;
(DD) Communications between Ms Coleman and the Respondent in or around May 2008;
(EE) Communications between Mr Fitzgerald and other media organisations in and around 2008 and 2009; and
(FF) Communications between Mr Blomfield and the Respondent in or around 2007 and 2008;
(viii) Collected personal and sensitive data about the Applicant without telling the Applicant it was doing so or affording the Applicant an opportunity to respond to the allegations set out in the documents it subsequently produced about the Applicant.
(ix) Failed to accurately record within the data the Applicant’s complaint about the Blomfield behaviour, her express rejection of it, and the victimising behaviour which occurred subsequently;
(x) Used and disclosed personal and sensitive data about the Applicant, collected for purposes other than for the purposes of collection:
Particulars
(A) Use of the data in order to decline liability for Workers Compensation Claims brought by the Applicant;
(B) Failure to provide notice of the use and disclosure of the data prior to producing it to both parties to the Supreme Court of New South Wales Proceedings Number 20218 of 2008: Blomfield v Nationwide News Limited;
(C) Use of the data in the current proceedings before the Federal Court of Australia; and
(D) Use of the data by the Respondent’s parent company in order to claim, by way of public statement made by the Chief Executive Officer and Group Executive Human Resources, that the nature of this personal and sensitive data absolves “The Group” of all legal obligation to the Applicant and its obligation under Australian industrial law.
(xi) Disclosed the terms of the compromise breached [sic] between the Applicant and [X], and witnessed by Mr Carroll;
[111] As a result of the said breaches of contract and/or duty, the Applicant has suffered loss and damage.
[112] Each breach did and was calculated to damage the Applicant.
[113] Each breach caused damage to the Applicant’s livelihood as well as detriment in the form of psychological trauma affecting the Applicant’s quality of life.
[114] In the premises the Respondent is liable to compensate the Applicant for an unspecified quantum of general damages for the hurt, humiliation and distress to her consequential upon the unlawful breaches of duty made by the Respondent, its servant, officers or agents.
275 I pause to note again that there was a further amendment to the pleading from that indicated in the document handed up to the Court on the second date of the hearing – in paragraph 110(i)(DD) the date has been changed from April to May 2008. I regret to say that this further change was not called to the Court’s attention.
276 “The contract alleged in paragraph 10” referred to in paragraph 102 is the contract made on 4 March 2005. The applicant’s case is that she entered into a new contract in May 2006 which varied the March 2005 contract or was “a new contract on similar terms” (see paragraph 14). The May 2006 contract, on the pleadings, was later superseded by an October 2006 contract, which, similarly, varied the March 2005 contract or was “a new contract on similar terms” (paragraph 37). The alleged breaches relate to disclosures from March 2006 to 2009. I will assume, for present purposes, despite the way the allegation is pleaded, that the applicant’s case is that the same express term appeared in each contract.
277 In support of her application on this part of the case, the applicant argued:
(a) It will be submitted that the employment relationship included “an obligation of confidence arising from the protocols that formed part of the relationship” and that the express obligations of confidence specified in the newly revised pleading, as well as the obligations in equity “evidence a clear foundation in fact and in law for the alleged claims”. She relies on the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 (Lenah Game Meats) and the cases referred to in it.
(b) It is not pleading a cause of action not known to the law, again relying on Lenah Game Meats and Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 and Giller v Procopets [2008] VSCA 236; (2008) 79 IPR 489 at [450] and [471]. Doe v Australian Broadcasting Corporation [2007] VCC 281 and Grosse v Purvis [2003] QDC 151 at 332 [sic]; (2003) Aust Torts Reports 81-706.
(c) It is not appropriate at this stage of the proceeding to “[stifle] the development of the law in respect of which there is a reasonable possibility it will be found that a cause of action may lie or be extended”. Here the applicant relied on Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 and, although I do not understand its relevance, s 80 of the Judiciary Act 1903 (Cth).
278 Most of the argument was devoted to the question of whether there is an arguable case for an action for a breach of privacy or confidence although the claim was pleaded in contract as well. There are undoubtedly grave problems with the proposed claim based on a tort of privacy.
279 In his second set of submissions Mr King argued that:
62. The mere fact that a cause of action may be novel does not preclude an Applicant from pursuing it, as long as it is reasonably arguable on the available facts.
63. The Applicant again relies on material discovered during the course of these proceedings, including as late as February 2010, in support of this additional claim.
64. The Applicant’s case raises a serious question to be tried. The Applicant contends that the content of the Respondent’s communications to the Australian press, other banks, clients and employees was confidential in the sense that it was private opinion about an employee’s body, health and character, is also a breach of confidence: National Privacy Principles for Private Sector Organisations, Privacy Act 1988, as amended 2001.
65. With respect to breaches of confidence, the Applicant contends that there arose an obligation of confidence, both from the nature of the information itself and the nature of the employment relationship, and that confidence was broken by Mr Blomfield in a sworn statement given on 8 June 2007 and by Ms Chapman on 14, 15, 16 and 17 April 2008.
66. The Applicant contends that an obligation of confidence also arises from the Privacy Act 1988, Part Viii s93 and the Applicant claims relief against it. The Act allows the Applicant to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information. The Act does not limit or restrict any other right that the Applicant has to relief in respect of that breach. Nor does the Act prevent the Applicant from seeking relief against the obligation of confidence which arose when the Applicant’s personal information, communicated by Mr Blomfield in his sworn statement, [was] communicated by third parties such as Ms Chapman. That breach of confidence caused the Applicant damage.
67. The Applicant contends that the Respondent’s breaches of privacy also give rise to an application for damages akin to those awarded by the House of Lords in Campbell v MGN Limited [2004] UKHRR 648 and the Applicant will submit that it is appropriate for this Court to adopt that authority.
68. The Applicant submits that the development of the tort of breach of privacy in Australia warrants the Federal Court’s consideration. We say that Applicant has a “right to respect for her private and family life, her home and her correspondence”. The Respondent’s recently discovered documents reveal action taken by the Respondent that was not “in accordance with the law” and was not “necessary in a democratic society”.
280 These submissions reflect the lack of clarity in the pleading. They appear to conflate a tort of privacy and an action for breach of confidence in a way I am unable to follow. They do not deal with the contract claim or its relationship with the other two causes of action.
281 They also refer only to disclosures by Mr Blomfield and Ms Chapman. Yet it would appear from the proposed pleading that the conduct of numerous other individuals is also impugned. I do not understand it to be in in dispute that Ms Chapman is not an employee of the respondent but the material facts said to give rise to the respondent’s liability for her conduct are not pleaded.
282 Despite the reference in the submissions to the Privacy Act 1988 (Cth) (Privacy Act) it is not mentioned in the pleading. In Austen v Civil Aviation Authority (1994) 50 FCR 272 the Full Court observed (at 278) that the Parliament appears to have made a deliberate decision not to legislate for a right of action in tort for a breach of a privacy principle (as specified in s 14 of the Privacy Act) and considered that the provisions of Part VIII of the Privacy Act “can be seen as extending the remedies available in equity for breach of an obligation of confidence”. And at 277 the Court said:
Although s 93 of the Privacy Act provides for a confider to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information, s 90 limits the operation of Part VIII (in which s 93 appears) to obligations of confidence in respect of a breach of which relief may be obtained in legal proceedings…
283 The decision of the House of Lords in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 is of little, if any, assistance. Ms Campbell’s common law action, though pleaded more widely, was presented at trial exclusively on the basis of a breach of confidence (coupled with a statutory claim not pressed on appeal), that is, the wrongful publication by the newspaper of private information. And, as Lord Nicholls of Birkenhead noted at [16], the European Convention on Human Rights and the Strasbourg jurisprudence have had a significant influence on this area of the common law in the United Kingdom. Not so, it must be said, in this country. Moreover, the confidential information in that case concerned Ms Campbell’s drug addiction and her treatment for it. This was data about her health and treatment for ill-health, which is generally accepted as both private and confidential. There is no suggestion in this case that we are dealing with information of this nature here.
284 New Zealand has recognised a common law tort of invasion of privacy, which does not depend on its Bill of Rights: P v D [2000] 2 NZLR 591, a case in which a public figure successfully applied for an injunction to restrain a journalist from publishing the fact that he had been treated in a psychiatric hospital and attended by a police officer as an emergency as a breach of privacy (but in which the application on the basis of a breach of confidence was rejected). Still, the New Zealand Court of Appeal held in Hosking v Runting [2005] 1 NZLR 1 in which Nicholson J’s decision in P v D was approved at [117]:
In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:
1. The existence of facts in respect of which there was a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
285 Tipping J, who with Gault P and Blanchard J formed the majority in the result, disagreed with them about the stringency of the second requirement (at [256]).
286 Gault P and Blanchard J emphasised the second element at [125]-[126]:
In theory, a rights-based cause of action would be made out by proof of breach of the right irrespective of the seriousness of the breach. However, it is quite unrealistic to contemplate legal liability for all publications of all private information. It would be absurd, for example, to consider actionable merely informing a neighbour that one’s spouse has a cold. By living in communities individuals necessarily give up seclusion and expectations of complete privacy. The concern of the law, so far as we are presently concerned, is with widespread publicity of very personal and private matters. Publication in the technical sense, for example as applies in defamation, is not in issue.
Similarly publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm.
287 In the present case, I note parenthetically, there is nothing in the pleading to suggest that the publication of particular private facts would be considered highly offensive to an objective reasonable person.
288 As Kirby J pointed out in Lenah Game Meats at [186], since the majority decision of the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (Victoria Park Racing), it has generally been accepted that the common law of Australia does not recognise a tort of privacy. At [41] Gleeson CJ said that “the lack of precision of the concept of privacy is a reason for caution in declaring a new tort” of this kind. Another is the tension between interests of privacy and interests of free speech. In Lenah Game Meats the Court was invited to depart from the old authority. It did not accept the invitation but Gummow and Hayne JJ (at [107]) felt that Victoria Park Racing does not stand in the way of the development of such a cause of action and that was plainly the view of the majority, if not all, of the court. Callinan J noted (at [321]) that it was well recognised in the United States, where a tort based on the right to privacy has developed, how fragile privacy can be if unprotected by a legal remedy.
289 Davies J summarised the current Australian position in Chan v Sellwood [2009] NSWSC 1335 at [37]:
Whether the law of Australia recognises a tort for breach of privacy is a little unclear. What the High Court said about it in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [40]–[42] and [106]–[132] and [189]–[190] would not appear to preclude the emergence of such a tort. In Grosse v Purvis (2003) Aus Torts Reports 81-706 Skoien J of the Queensland District Court found that there was such a tort (see at [421]–[447]). Heerey J in Kalaba v Commonwealth [2004] FCA 763 thought that the weight of authority was, at that time, against the proposition that there was such a tort but in Gee v Burger [2009] NSWSC 149 McLaughlin AsJ thought at [53] that the matter was arguable.
290 I accept, therefore, that it would be inappropriate to deny someone the opportunity to sue for breach of privacy on the basis of the current state of the common law, although whether the matters complained of in the present case would be actionable if a tort of privacy were recognised is another question.
291 The claim for breach of confidence is problematic. As Ipp AJA (with whom Mason P and Giles JA agreed) pointed out in NRMA v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 at [30], an unsuccessful appeal from a decision of Bryson J in the NSW Supreme Court declining to issue an interlocutory injunction restraining the respondents from publishing confidential information about proceedings at a board meeting:
The mere fact that particular information is of a confidential character does not impose an obligation of absolute confidentiality on every person in possession of it. For example, ordinarily, a director who knows a trade secret of the company would be entitled to discuss that trade secret with appropriate officers of the company. Senior government officers will often be entitled to discuss matters of great secrecy and great national interest with others who are authorised to receive such information. Moreover, circumstances may arise where a person in possession of confidential information is duty bound to disclose it. Each case depends on its own circumstances and in each case there has to be an enquiry into the extent and limits of the obligation of confidentiality that may be imposed on an individual in regard to particular pieces of confidential information in his or her possession.
292 Information may lose its confidential character if it later enters the public domain. If the confider publishes the information this releases the confidant from the duty of confidence: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268.
293 I am, however, content to proceed on the assumption that an action for breach of confidence would not fail the General Steel test.
294 But that does not mean that the applicant has made out a case to justify the grant of leave. Quite apart from the question of whether the facts as pleaded would give rise to an arguable case for breach of confidence or in tort for a breach or invasion of privacy, other matters stand in the applicant’s way.
295 First, these are entirely new issues. The legal questions are quite different. Despite the applicant’s submission to the contrary, the substratum of facts is not the same. For example, on the material before me the Fair Treatment Review referred to in paragraph 103, and which generated the diary notes listed as particulars under paragraph 110, seems to have had nothing to do with the discrimination, harassment or victimization claims. According to the man who conducted it, Terry Mason, an Executive General Manager in Human Resources, whose report was exhibited to an affidavit of Elizabeth Ferrier, the respondent’s solicitor, the review centred on “four core issues”:
Mr Selvarajah recording file notes which were said to be inaccurate and disconnected from the normal performance management process;
Unfair criticism of writing style;
Unrealistic working conditions and being assessed on cultural fit rather than outputs and being socially excluded from the management team;
Breaches of confidentiality by Mr Selvarajah.
296 Mr Mason went on to acknowledge that, in addition, “issues raised in support of remediating suggestions need also to be considered as they go more broadly to both management process and culture”. If there is anything in common between the matters arising from the Fair Treatment Review and the current proceeding, the applicant has failed to show it. The text of the applicant’s complaint considered in the review was not before the Court but Ms Chapman, in letters to the editors of The Age and the Sydney Morning Herald written on 14 April 2008, reported that she did not raise any issue of sexual harassment.
297 It appears likely that additional witnesses would be required (in circumstances where over 40 were flagged when the matter was set down for trial last year).
298 Joinder would unquestionably complicate the trial or, worse still, require the hearing dates to be vacated for a third time. In my view a costs order would not adequately compensate for such a course. Those against whom the applicant has made serious allegations should not have to wait any longer to have their day in court. Mr King argued “hardship cuts both ways”. He said “the Court is aware that [the applicant] has medical evidence to support her claim of continuing injury and loss, which are unlikely to be resolved during the pendency of proceedings” but “the Respondent has led no evidence of hardship”. There are several difficulties with this submission.
299 First, no medical evidence has been tendered. The Court has no idea of the nature or extent of the applicant’s claimed injury or loss. Secondly, as I pointed out early in these reasons, the respondent bears no onus on this application. Moreover, as the plurality recognised in Aon at [101]:
[w]hilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules [cf s 37M of the FCA Act] of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
300 There are also significant problems with the pleading. I accept the respondent’s argument that “the manner in which the ‘duty’ is alleged is so vague and unclear that it should not be permitted”. It would be susceptible to being struck out under Order 11 r 16 because it has a tendency to cause prejudice, embarrassment or delay.
301 Bongiorno J observed in Gunns Ltd v Marr [2005] VSC 251 at [57], that the Court must:
ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r 23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form.
302 This pleading is indeed vague and general. It is also in some respects unintelligible, contains irrelevant allegations, and lacks the clarity necessary to enable the respondent to know the case it has to meet and to enable the Court to make any sensible rulings on what might be relevant.
303 Take the breach of contract claim. The applicant pleads in paragraph 102 that it was an express term of her March 2005 contract that she could raise her concerns in accordance with the respondent’s Fair Treatment Policy. Nowhere, however, is a breach of that term pleaded. On its face it has nothing to do with a breach of privacy or confidence. As the respondent noted in it submissions filed on 7 May 2010, the document or documents said to comprise the “Fair Treatment Policy” are not identified. Neither is the relationship between the “Fair Treatment Policy” and the “CommSec Confidentiality Policy” described, nor the latter’s relationship to the contract.
304 The only other contractual term upon which the applicant relies is pleaded in paragraph 104. That pleading is plainly embarrassing. She must know whether it was an express term of the contract that the Equal Opportunity Policy and the Diversity Policy applied with respect to any grievance she had or action she took. The material facts upon which the Court could find that the contract contained such terms are not pleaded. What clause of the contract is said to have been breached? If this was not an express term, upon what basis is it said to have been implied? The respondent referred in its written submissions to the general principles about implying terms into contracts discussed in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 (PC) at 283. See also Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 442 in the case of a contract that is oral, or partly oral and partly written. The applicant made no attempt to fit the case she sought to make within these principles or to argue that they were inapplicable.
305 How the alleged duty of confidence differs from the (already pleaded) implied term of mutual trust and confidence was never explained.
306 The particulars to paragraph 107 are not, in truth, particulars of the alleged use or disclosure of confidential information. Rather, they seem to be allegations about the method of collecting and retaining information and particular (vii) appears to be completely irrelevant.
307 No particulars are given of the allegation in paragraph 109 that the respondent disclosed personal details about the applicant without her consent. What details? To whom were the disclosures made? When? In what circumstances? Mr King conceded that the particulars were not complete and the respondent was entitled to seek further and better particulars. But at this late stage of the proceeding and on the second attempt to plead these allegations I do not think it is sufficient to say that the respondent may ask for further and better particulars. The interlocutory process that this new pleading would generate would divert the respondent from its preparation for trial on the case the applicant chose to make against it.
308 What is the duty mentioned in paragraph 110 that is different from the duty mentioned in paragraph 109? If there is no difference, then the pleading is repetitive. If there is, then the pleading is embarrassing. If it is meant to provide particulars of the allegation in paragraph 109, then it fails miserably. In any case it cannot be a breach of duty (assuming the existence of such a duty) for an employer to disclose personal details about the applicant without the applicant’s consent. Not all the information an employer holds on an employee is confidential. Nowhere in this pleading is the particular data identified. Yet, as Gummow J said in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87, in an action for breach of confidence an applicant must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question and be able to show that the information has the necessary quality of confidentiality.
309 The particulars described in subparagraph 110 (i) are barely intelligible and their relationship to the material facts obscure. How is collecting data a particular of disclosing it?
310 Those “particulars” listed below that subparagraph refer to documents and “communications”. Again, these are not in truth particulars. They do not narrow the issues. Rather, they invite further questions. What is the nature of the communications? Were they oral or in writing? What information was conveyed? What made the particular information confidential? When precisely did the communications take place? In what circumstances?
311 The diary notes referred to in subparagraphs (A)-(G) are in evidence. They were exhibited to an affidavit of Ms Ferrier. I can see nothing in any of them that could conceivably amount to a disclosure of personal details about the applicant or the collection of personal and sensitive data about the applicant in an impermissible way. If that is not the purpose in referring to them, then what is the pleader’s purpose? Do the references to them do nothing more than identify documents the applicant would propose to tender? If so, they have no place in the pleading. The references only serve to obfuscate.
312 The documents referred to in the second set of particulars at subparagraphs (H)-(T) are described as records of interview with various individuals about the applicant’s allegations, which I understand to be the allegations that she later took to HREOC. But what she alleges was improperly disclosed about her in these interviews is also mystery. So, too, the way the respondent is said to be liable for any such disclosures.
313 The allegation in particular (viii) of collecting data without telling the applicant or giving her an opportunity to respond to it does not bear any apparent relationship to the contractual terms relied upon.
314 A failure to make an accurate record (the allegation in (ix)) could not, without more, support any of the pleaded causes of action.
315 I do not understand particular (x). It cannot be an improper purpose of collecting data merely to use the data for a purpose other than collecting it. An employer does not generally collect data on its employees merely to store it.
316 How can the respondent be held liable for the conduct of its parent company? Yet, some of the “communications” appear to have been made by employees of the parent company and particular (D) to particular (x) of paragraph 110 complains of the use of the data by the parent company.
317 The applicant is seeking an indulgence from the Court weeks away from trial. This circumstance alone calls for a degree of precision sadly missing from the proposed amended statement of claim.
318 I have given anxious consideration to whether leave should be given to re-plead and, if so, whether there should be a separate trial on the issues raised by this new allegation. Ultimately I have decided against both. The applicant has already availed herself of an opportunity to re-plead. I have no confidence that, given a further opportunity, the result would be appreciably different.
319 And there are additional considerations.
320 The respondent argues that the delay causes it prejudice. It submits, and I accept, that it would have to meet a significantly different claim. It would have to prepare and adduce evidence, not relevant on the current pleading, “on a number of fronts, including as to the operation of workplace policies and procedures”.
321 The proposed amended statement of claim was served on 15 February this year. The hearing on the notice of motion commenced on 11 March, when the applicant’s evidence was taken and she was cross-examined, and then was adjourned until 30 April. At that time, without any previous notice to the respondent or the Court, Mr King announced that the applicant had reframed her claim. The respondent had no opportunity to cross-examine her on the material that had been added, in particular, on the “communications” referred to in paragraph 110(i)(V)-(FF) to explore when she first became aware of those matters. Re-pleading is one thing; expanding the scope of the claim is another. No attempt was made to show that the respondent would not be prejudiced by the inclusion of the new material. It is no sufficient answer to say that the respondent could have required the applicant for further cross-examination. Counsel for the respondent had no opportunity to consider the proposed amendments on 30 April and the Court placed time limits on the hearing of the application. They were told that the purpose was, as I said, to clear up “one or two infelicities” in the original pleading when, in fact, it is plain that the new proposal was designed to do much more than that.
322 The justification for these late amendments is that the information upon which they are based only came to the attention of the applicant through the process of discovery in this proceeding “including as late as February 2010”. In her affidavit she asserted that she sought leave to file the proposed amended statement of claim to include the two additional causes of action “in answer to the documents produced by the Respondent on and after 19 January 2010”.
323 While it appears that the respondent was discovering documents as recently as January and February this year, that does not explain the delay in seeking leave to amend. The applicant conceded in cross-examination that all the documents “and events” included in what was then paragraph 102 (becoming paragraph 106, with the addition of further “particulars” following the further amendments during the hearing of the motion) were known to her by 15 June 2009 (T66/30). That includes the diary notes and the records of interview (Particulars (A)-(T)). No explanation was given for her failure to seek leave to make the amendments for another seven months. In his last set of written submissions Mr King claimed a delay of seven months was not unreasonable “having regard to the fact that for part of the time the applicant was unrepresented”. But the applicant said nothing of this in her evidence. Moreover, she conceded in cross-examination that she had no explanation for it. In any case, she was represented in June 2009 when she received the documents. She was also represented in October 2009 when the case was set down for hearing and, according to her solicitor’s submissions, she was only unrepresented between 22 December 2009 and 3 February 2010, in essence, only during the Christmas vacation.
324 In any event, as early as 11 January last year – more than thirteen months before the proposed amended statement of claim was served and six months before the proceeding was first listed for trial – the applicant wrote to the respondent’s solicitor complaining about the discovery and indicating that she would rely on certain matters as “particulars of aggravation in relation to damages at paragraph 79 of the Statement of Claim”. Paragraph 3 of that letter is almost identical in terms to the allegation in paragraph 110(i) of the proposed amended statement of claim. Paragraph 4 of the letter is in substance the same as paragraph 110(viii). Paragraph 6 of the letter is in substance the same as paragraph 110(ix). Paragraph 11 of that letter is in substance the same as the allegation in paragraph 110(x). The particulars to that subparagraph are identical to the matters raised in paragraph 11.
325 It is apparent from this letter that the applicant knew some, if not all, of the information more than twelve months before she first sought to amend the statement of claim. No evidence was adduced to explain why, in the circumstances, she failed to seek leave to amend for over a year.
326 Thus, delay has not been satisfactorily explained.
327 Leave to plead the matters set out in paragraphs 102-114 is therefore refused. It would not be the best way of promoting the overarching purpose to do otherwise. In my view, the interests of justice require that the trial proceed in the period assigned for it and on the basis of the causes of action the applicant chose to fight it when the proceeding was fixed for trial for the second time in October last year.
Category 5: Amendment to damages claims
328 These amendments are said not to change the nature of the case CommSec has to meet “in any material way at all”.
329 The proposed amendments generally seek to substitute for a fixed sum of general damages and to clarify that the damages are claimed “for the hurt, humiliation and distress to her consequential upon the unlawful sexual harassment of her by [X] and Mr Blomfield. They also increase the sums claimed for past and future medical expenses for disability discrimination (paragraph 87) and add (needlessly) the word “expert” before “medical evidence” in the so-called particulars.
330 I accept the applicant’s submission in this instance that the amendments do not change the nature of the case the respondent has to meet and, for this reason, with one proviso, I allow these amendments. The proviso relates to the claim in paragraph 77 for “an unspecified amount” instead of $10,000 by way of penalty for victimization. If the intention is merely to seek general damages, then the claim is superfluous because it is already made in the following paragraph. If the applicant’s intention is different, then it seems to me that the claim is misconceived. Section 94 of the SDA creates a criminal offence of victimization and imposes a penalty in the nature of a fine for corporate offenders. This proceeding is not in the nature of a criminal prosecution. It is an action for damages. In Qantas Airways Limited v Gama [2008] FCAFC 69 at [94] and [122] the Full Court confirmed that the damages which can be awarded under s 46PO(4) of the AHRC Act are entirely compensatory. No submission was directed to this question and the claim was first made in the original statement of claim. For this reason I will not now strike it out but at a suitable time I will hear argument about why I should not. In any event, the maximum penalty is 100 penalty units (or $11,000).
Category 6: Uncontentious amendments
331 These amendments appear in various places throughout the statement of claim. It is unnecessary to say anything about them. I am prepared to allow them all.
332 The applicant has had a partial measure of success. Even so, she sought an indulgence. In view of the history of the proceeding and the nature of many of the amendments, the respondent’s opposition was entirely reasonable and, for the most part, justified. The applicant should pay the respondent’s costs of the motion.
333 I direct the parties to bring in short minutes setting out the orders reflected by these reasons within seven (7) days.
I certify that the preceding three hundred and thirty-three (333) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
