FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited (No 3) [2010] FCA 903

THE COURT ORDERS THAT:

1.    The orders of 21 July 2010 are revoked.

2.    The respondent file and serve an amended defence by 4pm on Monday 30 August 2010.

3.    The applicant pay the respondent’s costs of the motion for leave to amend the statement of claim.

4.    The applicant file and serve an amended statement of claim by 4pm on Friday 27 August 2010 reflecting the effect of these and the earlier reasons.

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.

SUPPLEMENTARY REASONS FOR JUDGMENT

1        On 9 July 2010 I published reasons for judgment in the above proceeding: see Dye v Commonwealth Securities Limited [2010] FCA 720 (earlier reasons).

2        The earlier reasons dealt with the applicant’s motion for leave to amend her statement of claim. The amendments she sought to make were vast. Unfortunately, I overlooked a small number of the proposed amendments.

3        On 6 August 2010 the respondent’s solicitor wrote to my associate identifying these omissions. As the orders I made on 21 July 2010 to give effect to my earlier reasons have not been entered I now revoke them to enable me to provide these supplementary reasons.

4        The earlier reasons remain unaffected and these supplementary reasons are to be read with them.

PROPOSED AMENDMENTS 18(P), 18(T) AND 18(U)

5        At paragraph 91 and following of the earlier reasons I dealt with proposed amendments to paragraph 18 of the statement of claim, consisting of a series of allegations of behaviour by [X] said to constitute a breach of an implied term of trust and confidence in the applicant’s contract of employment.

6        I did not, however, deal with the allegation in sub-paragraph (p), which was that he made “threats to the Applicant in the event that she reported his conduct”.

7        In supplementary submissions filed on 26 March 2010 the applicant claimed (in effect) that the respondent was on notice of the allegation, citing pages 158, 165 and 222 of the HREOC statement. Pages 158 and 165 do not support the allegation – they do not mention [X] at all, let alone any threats by him. There is no page 222.

8        In the applicant’s concluding submissions – which ought to have been (but were not) limited to matters in reply – she sought support from two further pages of the HREOC statement. On page 37 she relied on her allegation there that [X] said to her that “he was going to write it up in a report for [her] next PF&R Review”. In context, this is a reference to events she says occurred on a business trip to New Zealand she took with him in June 2006. She also relied on her allegation on page 39 of the HREOC statement that he said to her, later the same month, “I don’t care what you do, just leave by the end of the week, I don’t want you here anymore and you’re not my problem”.

9        Read in context, there is nothing here to support the specific allegation in 18(p) that, in effect, [X] threatened the applicant in response to the possibility that she might report his conduct or with the purpose of deterring her from doing so.

10        I therefore refuse this amendment.

11        At paragraph 133 of my earlier reasons I raised my concern that the allegations in sub-paragraphs (t) and (u) were not supported by the allegations contained in the HREOC statement to which they were said (in the applicant’s concluding submissions) to be “referable”.

12        Given the lack of support for these two allegations in the HREOC statement, I also refuse these amendments.

PROPOSED AMENDMENTS 68(O), (R), (T) AND (U)

13        At paragraph 169 of the earlier reasons and following I dealt with a large number of proposed amendments to paragraph 68 of the statement of claim. After dealing with some of the proposed amendments, I then indicated at paragraph 169 that I refused the remainder. Regrettably, however, I did not deal expressly with sub-paragraphs (o), (r), (t) and (u).

14        The applicant sought support for the very specific allegation in sub-paragraph (o) by referring generally to 13 pages of the HREOC statement. None of those pages provides any direct or clear support for the allegation and neither in written submissions nor in oral argument did Mr King explain the relationship between that material and the allegation.

15        In the absence of any explanation for the delay in pleading it and any discernible support for it in the HREOC statement, I refuse leave to make this amendment.

16        The applicant claimed that Mr Blomfield’s statement dated 9 May and 8 June 2007 was her source for the allegation made in sub-paragraph (r). That is to say it was her contention that the respondent was already on notice of it because of Mr Blomfield’s statement. In fact the statement is dated 29 May and 8 June 2007 though nothing turns on this. Again, I was not taken to any particular part of the statement and I was never told how the statement put the respondent on notice. In it Mr Blomfield said that “during this time [February and March 2007] Vivienne was not showing up for work and without explanation”. But he did not say that he told anyone else. I therefore refuse leave for this amendment, too.

17        The same statement of Mr Blomfield as well as a statement of Mr Selvarajah dated 29 May 2007 were said to be the source of the proposed sub-paragraph (t), although the relevant passages were never identified. Doing the best I can, the closest Mr Blomfield’s statement comes is when he stated that he was “aware that Vivienne’s output was not acceptable and her dealing with other people was not acceptable and as a result Arnie placed her on a performance management program”. In Mr Selvarajah’s statement there is no reference to discussing with anyone the applicant’s “performance output” or her performance more generally. Neither passage, in my view, is sufficient to put the respondent on notice of the proposed additional pleading. In the circumstances I also refuse leave to add this allegation.

18        The page of the HREOC statement said to support the allegation in sub-paragraph (u) does not do so. I therefore refuse this amendment.

Orders

19        I order that:

(1)    The orders of 21 July 2010 are revoked.

(2)    The applicant file and serve an amended statement of claim by 4pm on Friday 27 August 2010 reflecting the effect of these and the earlier reasons.

(3)    The respondent file and serve an amended defence by 4pm on Monday 30 August 2010.

(4)    The applicant pay the respondent’s costs of the motion for leave to amend the statement of claim.

Associate:

Dated:    23 August 2010