Federal Court of Australia

Norman v Inner West Council [2025] FCA 1194

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be referred to a lawyer for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

2.    The respondent serve its request for further and better particulars by 3 October 2025.

3.    The applicant serve any response to the request for further and better particulars by 24 October 2025.

4.    The respondent file and serve its defence by 14 November 2025.

5.    The applicant file and serve any reply by 5 December 2025.

6.    The matter be referred to a Registrar for mediation on a date to be fixed by the Registrar after 5 December 2025, pursuant to r 28.02 at which:

(a)    an officer of the respondent, who has full authority to mediate and effect a settlement, must be present; and

(b)    each person participating in the mediation, including legal representatives, whether attending in-person or by video/audio link is to attend for the full duration of the mediation.

7.    In the event that the mediation referred to in Order 6 is unsuccessful, the parties approach my Associate within 7 days of the concluded mediation with a view to the matter being relisted for a case management hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J:

1    The proceedings are before me today for the first case management hearing. Mr Norman’s case concerns his previous employment by the respondent and its predecessor from 1999 to 2025 and his allegations that he suffered wrongful treatment by the respondent after he disclosed a work-related psychiatric injury. Claims are made pursuant to the Disability Discrimination Act 1992 (Cth), the Sex Discrimination Act 1984 (Cth) and various aspects of employment legislation.

2    Mr Norman has filed an originating application, statement of claim and a lengthy affidavit dated 6 August 2025. He has also filed an interlocutory application dated 19 September 2025 seeking orders for discovery, with an affidavit and written submissions in support. Mr Norman seeks to have his interlocutory application heard today. Mr Norman has shown a natural and commendable desire to have his case brought to trial as expeditiously as possible.

3    Mr Norman is self-represented. Among the various orders which he has sought in the alternative to the orders for discovery is an application for a referral, under r 4.12 of the Federal Court Rules 2011 (Cth) (the Rules), to a lawyer for legal assistance in the proceedings by the issuing of a referral certificate. In my view, such a referral is appropriate.

4    The respondent seeks orders for the provision of further and better particulars, the finalisation of pleadings by way of filing a defence and any reply, and a referral to a Registrar for mediation. The respondent submits that Mr Norman’s interlocutory application for discovery is premature and should be considered only after the close of pleadings, and proposes a timetable for the preparation of the interlocutory application for hearing. The respondent says that particulars will be sought as a pragmatic way of dealing with the statement of claim, which it says with considerable justification is not properly pleaded. The respondent refers to r 20.13(3) of the Rules which provides that an application for discovery may not be made until 14 days after the respondent has filed a defence or an affidavit in response to the affidavit accompanying the originating application.

5    I accept that the Court has power under r 1.35 to make orders inconsistent with the Rules, and that in some cases an order for discovery may be appropriate before a defence has been filed. However, I do not think that departure from r 20.13(3) is warranted in the present case, for the following reasons.

6    Section 37M(3) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides 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 a way that best promotes the overarching purpose, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. In my view, the overarching purpose set out in s 37M is best served by taking the following course.

7    First, it is important to know whether any practitioner is willing and able to act on a pro bono basis for Mr Norman. I am prepared to make a referral under r 4.12 to assist in that process. If Mr Norman is able to obtain pro bono representation, there seems to me a real prospect that the statement of claim will be reformulated, at least as a matter of form if not also as a matter of substance. The originating application will also require some attention by any legal representative.

8    Second, the respondent should proceed to make its request for further and better particulars. While the Court ordinarily seeks to discourage lengthy requests for particulars, in this particular case the request and answers should assist Mr Norman (or his legal representatives, if any are engaged) in conveying more clearly and directly the case sought to be made, as well as advancing the respondent’s understanding of the case which it has to meet.

9    Third, the respondent should then file its defence, with an opportunity for Mr Norman to file a reply if appropriate.

10    Fourth, the matter should then be referred to a Registrar for mediation. No one would wish upon a litigant suffering from psychiatric illness the strain of litigation if it can possibly be avoided by an agreed compromise. An early mediation in the present case is plainly desirable. The extensive affidavit made by Mr Norman on 6 August 2025 tends to indicate that he is already armed with sufficient material to make a mediation worthwhile, without the benefit of the discovery which he seeks. Even if the underlying dispute cannot be resolved, the parties may well be able, through the mediation, to agree upon the scope of discovery and other pre-trial steps.

11    Fifth, if the mediation is unsuccessful, I will then consider the further steps required for pre-trial preparation, including Mr Norman’s application for discovery, either in its present form or in a form which may be amended in light of the steps which will have been taken by then, and in light of advice given by any legal representative who may be willing to act.

12    In my view, the course which I have proposed is in the best interests of both parties, and best promotes the overarching purpose set out in s 37M of the FCA Act. The prejudice identified by Mr Norman if his application for discovery is delayed, is that memories fade and electronic records become harder to retrieve over time. I do not regard that as giving rise to substantial prejudice in the context of the likely timeframe by which his interlocutory application for discovery will be heard and determined in the event that the mediation is unsuccessful.

Associate:

Dated:    26 September 2025