Patrick v Wadoon Pty Ltd [2007] FMCA 663

(11)

The time and date for further directions as ordered in Order 6 above has been amended by the Court as the original time and date was set down on the Queen's Birthday public holiday in South Australia.

The Applicant's outline of submissions that was filed yesterday raised a fundamentally new issue in the context of these proceedings, namely, that:

Being a male to female pre-op transsexual Patrick would constantly be asked for sexual favours from other employees for their sexual gratification some of these were in person and some via electronic means (phone & text) (paragraph 5 of outline of submissions).

Having heard briefly from the Applicant this morning, and also more extensive submissions from Mr Manuel, Counsel for the Respondent, the Court, as it indicated in the course of discussion with Counsel for the Respondent, takes the view that that allegation is a serious one but also one which it is in the interests of justice be properly put before the Court and properly determined by the Court. (See: Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841; (1993) 116 ALR 625; State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146).

In the present circumstances there is effectively no particular evidence in relation to the new allegation that has been referred to in paragraph 1 above.

Furthermore, the allegation in those terms is not contained in either:

a) the Applicant's Amended Application; or

b) the Applicant's Amended outline of submissions.

Somewhat reluctantly, given the very late nature of the raising the allegation and the manner in which it was raised in an outline of submissions, but bearing in mind that the overriding obligation of the Court in relation to all claims, but particularly claims involving human rights issues, is to do justice, the Court has determined that the Applicant ought be granted leave to amend:

a) the Application; and

b) the Points of Claim,

to include the substance of paragraph 5 of the outline of submissions, and the Court will treat paragraph 5 of the outline of submissions as being:

c) paragraph 8A of Applicant's Amended Application; and

d) paragraph 5.14 of the Amended Points of Claim.

The Court recognises the significant prejudice that arises to the Respondent from the Applicant being granted leave at this time to Amend the Application and Points of Claim in the manner referred to above. In those circumstances it is appropriate that the Respondent not be required to deal with these issues effectively "on the run" in a hearing situation.

Given the indications that have been given to the Court both from the Applicant and Counsel for the Respondent this morning, it does appear to the Court, without the benefit of any particular evidence on the issue, but with the benefit of helpful submissions from Counsel for the Respondent, that the issue in respect of which leave has been granted to amend the Application and Points of Claim might well be so intertwined with other allegations previously made as to effectively preclude it being dealt with as a separate allegation and allowing the point to be dealt with discretely (which was the Court's initial inclination). The more that the Court heard about the new allegation this morning, the more the Court came to the view that it does appear to be intertwined with the other allegations or at least has the potential to be significantly intertwined with those other allegations.

The Court therefore takes the view that the Applicant ought to file and serve an affidavit in this matter, both in fairness and to ensure that the situation the Court and the parties now find themselves in does not occur again. The Court will order that the Applicant file and serve an affidavit containing and consolidating all facts, matters and circumstances relied upon in support of the Application and attaching thereto copies of all documents, including electronically transmitted documents, referred to in the affidavit and relied on in support of the claim, and that the Applicant have one month to do that, that is by 4.00 pm on 31 May 2007.

Before the Court loses sight of the point, it should be added that the Applicant's condition today, perhaps understandably, is such that the Applicant might have effectively been precluded from the proper giving of evidence before the Court. That is also a circumstance to which the Court has had some regard in formulating its view about certain issues and in formulating its orders. It was a matter which was quite properly adverted to by Counsel for the Respondent.

Given past non-compliance with various orders of the Court at certain stages, not all stages, if the Applicant does not file the affidavit as ordered, then the Application will be dismissed under the Federal Magistrates Court Rules, 2001 (Cth) for non-compliance.

The Court notes that various persons were to attend Court to give evidence apparently voluntarily on behalf of the Applicant, and also some subject to subpoenas, one returnable today, which has been adjourned, and another returnable tomorrow at 10.15 am. The Court, given that there are persons who will apparently attend voluntarily on behalf of the Applicant, will also make an order that the Applicant file and serve any other affidavit in support of the Application attaching thereto copies of all documents referred to in the affidavits by 4.00 pm 7 June 2007.

The Applicant will not be allowed to file and serve any further affidavits, except those referred to in the orders that the Court has indicated will be made above, without leave of the Court.

There will be an order that there be a further directions hearing by video at 11.30 am CST on 11 June 2007 to ensure that the procedural aspects of the matter are in train and properly on course. At that directions hearing, if the Applicant has not complied with the orders which are required to be complied with by that time, the Court will entertain an application for dismissal of the proceedings. As indicated, the Court recognises the prejudice to the Respondent by reason of the late raising of the new allegation which has effectively, in the Court's view, caused the matter to go off at this stage.

By reason of the orders that have already been made with respect to the Applicant being allowed to file further affidavits, the Court will allow the Respondent to file further affidavits and the Respondent will have leave to file and serve any further affidavits attaching thereto copies of any documents referred to in those affidavits or any other documents to be relied upon, including documents electronically transmitted. The Respondent to do that by 4.00 pm on 6 July 2007.

Subject to issues of availability, the Court will re-list the matter for four days commencing at 10.15 am on 25 September 2007. The matter will then run 25, 26, 27 and 28 September 2007, Tuesday to Friday.

Given the Applicant's present condition as it is apparent to the Court at this point in time, the Court proposes that costs be reserved.

The Court makes a further order that the Applicant provide to the Respondent's instructing solicitor and in particular Ms Smith of EMA Legal:

a) an address for service (other than a post office box); and

b) that that address for service be the subject of an order that it not be released or provided to any officer, employee, agent, or servant of the Respondent and that the instructing solicitor maintain the confidentiality of that address for service as between her and the Applicant.

It will be ordered that the costs reserved of today also be adjourned to 25 September 2007 and it may be that on that date costs are adjourned off to another date to be considered in conjunction with the costs of the hearing proper.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM