Stanley v Service to Youth Council Incorporated

Relevant principles 7 The principles to be applied in relation to the applicant's application were not in issue. Both parties referred to the reasons of Sackville J in the judgment of the Court in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at 66: 61 The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way. To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question? 62 This approach is consistent with the manner in which the Commission used the term "propensity" in its reports on Evidence. It defined the word this way (Interim Report, vol 1, par 785): "Propensity. This word is defined by the Concise Oxford Dictionary to mean 'inclination or tendency'. It seems that this is the way it is used in the law, a tendency to act, think or feel in a particular way. Usually the propensity will be evidenced by specific conduct, leading (like character) to the inference that the person will behave in conformity with that propensity." See also Richards v Macquarie Bank Ltd (No 2) [2012] FCA 1403; (2012) 301 ALR 494; Twynam Pastoral Co Pty Ltd v AWB (Australia) Ltd [2008] FCA 1922 and Robinson v Goodman [2013] FCA 893. 8 In a later passage in Jacara, Sackville J discussed the expression "significant probative value" and held that this requires that the proposed tendency evidence be more than merely relevant to a fact in issue. His Honour said at 68-9: 72 … The fact that tendency evidence is relevant to a fact in issue is not enough to make it admissible. Even if relevant, it will not be admissible if the Court thinks that the evidence would not have "significant probative value". As Lehane J pointed out in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, at 175-176: "What is clearly required, if [tendency] evidence is to be admissible, is that it could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance." 73 Precisely what more is required has been expressed in different ways. In R v Lockyer (1996) 89 A Crim R 457 (S Ct NSW), Hunt CJ at CL said (at 459) that "'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance." His Honour thought that this meant evidence that is "important" or "of consequence" in establishing the fact in issue. The approach of Hunt CJ at CL was quoted with apparent approval in R v Martin [2000] NSWCCA 332, at [67]. See also R v AH, at 709, per Ireland J. Lehane J in Zaknic, deriving guidance from the pre-Evidence Act cases, thought that the tendency evidence would have to be "clearly and strongly probative of the relevant fact in issue" (at 176). 74 I doubt that it is useful to attempt any more precise reformulation of the terms of s 97(1) of the Evidence Act. The statutory language provides the standard that is to be applied and judicial statements as to the construction of the legislation cannot supplant that language: Ogden Industries Pty Ltd v Lucas [1970] AC 113 (PC), at 127, quoted in Brennan v Comcare (1994) 50 FCR 555, at 572, per Gummow J. Moreover, the statutory language incorporates a test which, although it will normally be applied before facts have been found, involves "a degree and value judgment" having regard both to the evidence to be adduced and other evidence adduced or to be adduced: s 97(1)(b); Fleming v Hutchinson (1991) 66 ALJR 211. Indeed the tendency rule is framed in terms of whether the court "thinks" that the evidence would not have significant probative value. 9 Like Mortimer J in Robinson v Goodman [2013] FCA 893 at [12], I consider that the Court should first identify the relevant facts in issue in the applicant's proceeding; secondly, the evidence sought to be adduced under s 97; and, thirdly, whether it can be said that that evidence is capable of proving a tendency in SYC to behave in the way alleged by the applicant.

Background 10 Each of the applicant, Ms Poppy and Ms Curnow was formerly employed by SYC. The employment of each ended because SYC declared their position redundant. 11 The applicant and Ms Poppy have brought proceedings in this Court in respect of their respective terminations. Ms Curnow did not commence proceedings. Both the applicant and Ms Poppy are represented by the same solicitor. Their respective amended statements of claim are in narrative form and contain a number of similar allegations. 12 Since my ruling on the proposed tendency evidence, the applicant has withdrawn some of her pleaded allegations. However, the parties' submissions and my ruling were made by reference to the applicant's amended statement of claim as it stood on 30 September 2013 and, accordingly, these reasons refer to the claims then made by the applicant. I record that the Court was not asked to review the evidence ruling in the light of the withdrawal of some of the pleaded allegations.

The pleaded case of the applicant 13 The applicant's employment was terminated on 15 February 2012, while she was on parental leave following the birth of her first child on 20 August 2011. She pleaded that she had been targeted for dismissal by five senior managers of SYC (Messrs Edginton, Furniss and Dyer, and Ms Gillies and Ms England) as a consequence of her pregnancy, the birth of her child and her maternity leave; that the targeting had commenced shortly after she informed SYC of her pregnancy; and that the pregnancy and its consequences were the sole or operative reason for her redundancy. The applicant pleaded, in addition, that each of the five senior managers had participated in, and was responsible for, the termination decisions and their implementation, and that they had, accordingly, aided and abetted SYC in its contravention of the SD Act. Her principal claim was that by making her redundant, SYC had discriminated against her in comparison with an employee in a similar position who did not have the characteristics of being pregnant or having family responsibilities. 14 Next, the applicant alleged that SYC was responsible for sexual harassment by Mr Furniss said to be constituted by his response when she informed him of her pregnancy. That alleged response is set out in Stanley v Service to Youth Council [2014] FCA 643 at [62]. 15 Finally, the applicant pleaded breaches by SYC of the National Employment Standards contained in ss 65, 83 and 84 of the Fair Work Act 2009 (Cth), and a breach by SYC of her contract of employment by not complying with its own Equal Opportunity Policy. It is not necessary, for present purposes, to detail those allegations as the proposed tendency evidence was not directed to them.

The proposed evidence of Ms Poppy 16 Ms Poppy's employment was terminated on 23 July 2010, some one year and seven months before that of the applicant. Until January 2010, she had occupied the position of Marketing Manager reporting directly to Mr Edginton, the CEO. In early 2010, the position title was changed to Manager, Marketing and Events, and Ms Poppy then reported to Dr Hancock who had the title of Manager, Communications and Strategy. 17 Ms Poppy gave birth to her first child on 22 March 2010. She had informed Mr Edginton of her pregnancy in early August 2009 and had commenced maternity leave on 18 February 2010. 18 The evidence which the applicant proposed leading from Ms Poppy was the entire content of the affidavit which she had affirmed on 18 September 2013 containing her evidence-in-chief, as it then stood, in relation to her own proceedings. This is a substantial document, comprising some 216 paragraphs and 22 exhibits. Necessarily, the affidavit was not confined to matters which could be probative of issues in the applicant's proceedings. 19 In paragraphs 1 to 38 of her affidavit, Ms Poppy deposes to her personal circumstances and outlines the work she had performed at SYC. In paragraphs 39 to 45 she deposes to Mr Edginton's reaction when, in early August 2009, she informed him of her pregnancy. In paragraphs 46 to 50, Ms Poppy deposes to a conversation with Mr Furniss in which, not long before she commenced maternity leave, they discussed her plans. 20 Ms Poppy then deposes to two events which had occurred in the latter part of 2009 which she said made her feel devalued as an employee. First, she and two other employees in the Marketing Department were asked to move out of their office to an office which she regarded as inferior, and Mr Edginton then occupied the vacated office. Ms Poppy acknowledges in the affidavit that she had later been told that Mr Edginton needed to move offices for security reasons. 21 Secondly, Ms Poppy and other managers at the business development level within SYC were told that they would no longer attend senior management meetings. Instead, Dr Hancock would attend on behalf of the Marketing Department. 22 In paragraphs 67 to 125, Ms Poppy deposes to a series of events relating to the contemplated redundancy of her position as Marketing Manager and the later redescription of her role. This was not the 23 July 2010 redundancy of which she ultimately complained. It was a "redundancy" resulting from a reorganisation of the Marketing Department and the introduction of Dr Hancock into the Department. The principal elements in the series of events were as follows: (a) Mr Edginton told Ms Poppy that the position of Marketing Manager no longer existed and invited her to consider a new position entitled "Manager Events" which he contemplated would report to Dr Hancock as "Manager Marketing and Strategy". (b) Ms Poppy spoke to Ms Gillies, the Executive General Manager of People and Culture. Ms Gillies confirmed that if the role of Marketing Manager no longer existed and was redundant, the applicant would be made redundant by SYC. Ms Poppy then ascertained the entitlements she would be paid on such a redundancy and told Ms Gillies that she would not accept the proposed role of Manager Events. (c) At a later meeting, Ms Gillies told Ms Poppy that her position as Marketing Manager was not redundant and that SYC was only discussing ideas. (d) By an email of 1 December 2009, Ms Poppy sought a discussion with Mr Edginton. In the email, she rejected the role of Manager Events and expressed interest in a Marketing Manager role. (e) Ms Poppy then had a meeting with Mr Edginton and Ms Gillies. She was told that her role of Marketing Manager still existed and that the position of Manager Events was a suggestion only. She was provided with a job profile for a position of Manager, Marketing and Events which would report to Dr Hancock in the position of Manager, Communications and Strategy. (f) In January 2010, SYC changed Ms Poppy's job title to Manager, Marketing and Events, but her position description was similar to her previous role and her salary was unchanged. Ms Poppy now reported to Dr Hancock. Although having reservations, Ms Poppy accepted these changes. It meant that Dr Hancock, and not Ms Poppy, now had responsibility for the Marketing Department. 23 Ms Poppy also deposes to internal changes within the Marketing Department, including the promotion of the existing Marketing Assistant (Ms Colebeck) to the position of Marketing Coordinator. 24 In paragraphs 132 to 211, Ms Poppy deposes to the events commencing with her request to return from maternity leave on 5 July 2010, working on a part-time basis. Dr Hancock acknowledged receipt of Ms Poppy's request but she was not given a substantive response. Subsequently, on 10 June 2010, Ms Gillies told Ms Poppy that her position was no longer required, that a letter on the subject was being sent to her, and that she would be required to attend a meeting. 25 Ms Poppy then attended two meetings: the first was on 16 June 2010 at which she was told that her position had been selected on a preliminary basis for redundancy, and she was given details of an alternative part-time (and less well-paid) position of Assistant to the Board. In the discussion which ensued, Ms Poppy was invited to make any other suggestions. 26 Following the meeting, Ms Poppy sent a letter to SYC protesting at its treatment of her and seeking an increased redundancy payment. Ms Poppy attended a second meeting at SYC on 25 June at which her employment was terminated, with effect from 23 July. 27 The balance of Ms Poppy's affidavit concerns events which happened after the termination of her employment.

Consideration of the proposed evidence of Ms Poppy 28 I ruled that the applicant could lead the evidence contained in paragraphs 46 to 49 of Ms Poppy's affidavit concerning the conversation with Mr Furniss shortly before commencing her own maternity leave. As previously indicated, the content of Mr Furniss' remarks are set out in [62] of Stanley v Service to Youth Council [2014] FCA 643. The remarks attributed by Ms Poppy to Mr Furniss are remarkably similar to those which the applicant claims he made when she announced her pregnancy to him. That being so, Ms Poppy's evidence has the quality of being "strikingly similar" as discussed by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 294-5: That strength lies in the fact that the evidence reveals "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution. Accordingly, this evidence was capable of significant probative value. 29 However, I considered that the balance of Ms Poppy's evidence did not satisfy the "significantly probative" criterion. The applicant relied upon what was said to be a number of factual similarities in the circumstances culminating in the termination of employment of each of the applicant and Ms Poppy. These were: (1) Both had their duties redistributed after announcing their pregnancy and before commencing maternity leave; (2) A current employee absorbed some of the duties of each; (3) An administrative role was created "to pick up" some of the duties previously performed by each; (4) Persons performing duties previously carried out by each were given job titles which included the name "Coordinator"; (5) Both had applied to return to work part-time at the conclusion of their maternity leave; (6) During their maternity leave, both were told that their position was redundant on a "preliminary basis". (7) Mr Dyer was involved in both terminations; (8) SYC did not leave the role of either open during the period of the maternity leave. 30 The applicant then submitted that "[a]s a matter of logic and experience, the evidence of Ms Poppy is capable of proving a tendency of Mr Dyer and [SYC] to engage in a course of conduct in respect of female employees who become pregnant and take maternity leave resulting in their roles becoming redundant and their employment terminated". 31 As can be seen, the applicant's submissions were put at a level of generality. One may accept that, the higher the level of abstraction, the more probable it is that similarities in the features of two or more cases may be found. However, similarities of that kind will seldom have the "significant probative value" contemplated by s 97. That is so in the present case. 32 In my opinion, the eight matters to which the applicant pointed could not, by themselves or in combination, reasonably be regarded as having significant probative value on a matter in issue in the applicant's proceedings. 33 Several of the eight listed matters appear to be of a commonplace kind. It is, for example, common for the duties of persons taking leave for an extended period to be redistributed or absorbed by other employees, or for new positions to be created to facilitate the carrying out of that person's duties. It is also commonplace for persons taking parental leave to seek, at least in the first instance, a return to work on a part-time basis. These commonplace matters cannot be regarded as probative of the distinctive and non-commonplace proposition which is at the heart of the applicant's case, namely, that she had been targeted for termination because of her pregnancy and its consequences. 34 The fact that in the Property and Assets Department and in the Marketing Department employees were given job titles including the name "Coordinator", does not seem particularly probative of any issue. 35 The circumstance that the termination in each case followed two meetings in the first of which the decision was described as "preliminary" seems probative of the "system" SYC adopts in circumstances of redundancy, rather than of its reasons leading to the redundancy. 36 It is true that, at one level of abstraction, both the applicant and Ms Poppy were made redundant when seeking to return to work after maternity leave. Moreover, the fact that that occurred in the case of Ms Poppy is not of itself probative of the applicant's claim that she had been targeted for employment after the announcement of her own pregnancy. One would need to be able to identify similarities of a more specific and concrete kind in both the conduct of SYC and the circumstances in which it occurred. Moreover, the proposed evidence of Ms Poppy identified relevant dissimilarities. There is no suggestion that the applicant was required to move offices or no longer required to attend senior management meetings. Further, Ms Poppy herself deposes to reasons for those changes which at least, on their face, seem to be unrelated to any reason proscribed by the SD Act. Further again, there is no suggestion that Ms Poppy's redesignation as Manager, Marketing and Events in early 2010 had any counterpart in the applicant's case. 37 The particular matter of which counsel submitted Ms Poppy's evidence is probative is to be noted. Counsel did not contend that Ms Poppy's evidence was probative of the precise conduct alleged by the applicant but instead of a "course of conduct" by SYC in respect of female employees who become pregnant and take maternity leave. Counsel seemed to be alleging that SYC adopted a "system" with respect to pregnant employees. 38 The applicant did not plead that SYC had a system with respect to such employees of which the conduct in relation to her was an incident. The absence of such a pleading is not fatal to the admission of the evidence, but it does create difficulties in the present case. Given the specific allegation of targeting made by the applicant, the course of conduct or system, if it existed, would have to be one encompassing the targeting of pregnant employees. Ms Poppy's proposed evidence cannot reasonably be characterised as being significantly probative of a tendency by SYC to act in that way. 39 Finally, the applicant did not, in either the written or oral submissions concerning the proposed tendency evidence, contend that the evidence of Ms Poppy was relevant to her central pleaded case, namely, that she had been targeted for termination because of her pregnancy, child birth and parental leave. On the contrary, counsel for the applicant said in oral opening: The motive and the subjective opinions of the respondent, and the individuals working within the respondent, the key decision-makers, are not important in this case. In some discrimination cases, motives can be relevant. In this case, it's not the applicant's case that there was an intentional plan to inflict harm on the applicant, but that is not the relevant test under the Act. Later in the opening, counsel confirmed that the applicant was not suggesting that SYC was implementing a conscious strategy or plan: Well, it's not a master plan in the sense that it's a way of ousting - that one individual has necessarily turned his or her mind to this [as] a way of ousting individuals, but it's a way of dealing with an employee who goes out pregnant which results in a situation where their duties have all disappeared once they start maternity leave and they get made redundant. 40 This rather suggested that the applicant wished to adduce the evidence of Ms Poppy to support her account that the factual events culminating in her termination had occurred. Ms Poppy's evidence could not reasonably be regarded as significantly probative of those events. Her termination had occurred more than 18 months previously and in different circumstances. Similarities at an abstract level between the events concerning each could not have the effect of making it more likely that the events constituting those factual similarities had occurred. 41 I noted in any event that there did not appear to be significant differences in the foreshadowed evidence of either party in the present proceedings as to the actual events leading to the termination of the applicant's employment. The principal differences appeared to relate to the characterisation of those events and, at least on the applicant's pleaded case, to the purpose of the conduct alleged against SYC. 42 For these reasons, I ruled against the admission into evidence of the substantive part of Ms Poppy's affidavit. I did allow the applicant to adduce the evidence contained in paragraphs 46 to 49 of Ms Poppy's affidavit relating to her conversation with Mr Furniss, together with paragraphs 1 to 18 which outline the background to Ms Poppy's employment with SYC.

Ms Curnow's proposed evidence 43 Ms Curnow was employed by SYC as a Tender and Business Development Consultant between September 2011 and October 2012. 44 The evidence which the applicant proposed to lead from Ms Curnow was contained in an affidavit affirmed by her on 18 September 2013. The evidence was in two broad categories. First, Ms Curnow deposes that a tender submitted by SYC had been rejected initially because SYC had not, for two successive years, submitted the annual report required by the Equal Opportunity for Women in the Workplace Act 1999 (Cth). Ms Curnow goes on to depose that Ms Gillies (Executive General Manager, People and Culture) was visibly upset on learning that the reports had not been submitted and had acknowledged that the requirement to do so had been "overlooked". 45 The second topic to which Ms Curnow deposes concerns the circumstances of the termination of her employment by SYC. Mr Furniss had told Ms Curnow that her position was redundant because SYC had determined to outsource its tender writing function. Ms Curnow's affidavit describes the course of events and expresses some dissatisfaction with SYC's decision.

Consideration of the proposed evidence of Ms Curnow 46 The applicant contended that Ms Curnow's evidence of SYC's non-compliance with the reporting requirements of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) indicated a tendency by SYC "to be ignorant of, and not to pay due regard to, its statutory equal opportunity obligations concerning women's participation in the workplace". 47 Again, this submission depended for its force on the drawing of similarities at an upper level of abstraction. I considered that Ms Curnow's evidence did not have significant probative value in the applicant's claim. Her evidence indicates non-compliance by SYC with a significant reporting requirement, but one could not reasonably infer from that that SYC was not only indifferent to, but acted in defiance of, its obligations under the SD Act. 48 In any event, the upset of Ms Gillies and her statement that the requirement had been overlooked, to which Ms Curnow deposes, tends to indicate inadvertence rather than deliberate conduct. Inadvertent non-compliance with one statutory requirement cannot reasonably be regarded as significantly probative of a disregard generally by SYC of its statutory obligations with respect to women's participation in the workplace, let alone of the deliberate and concerted targeting conduct in breach of the SD Act alleged by the applicant in this case.

Reasonable notice 49 The above conclusions make it unnecessary, strictly speaking, to consider the issue of reasonable notice in respect of the proposed evidence from Ms Curnow and in respect of the proposed evidence of Ms Poppy, other than that contained in paragraphs 46 to 49 of her affidavit. However, in case this matter goes further, I will state my conclusions briefly. 50 I proceed on the basis that the giving of notice serves the purpose identified by Giles JA in Martin v State of New South Wales [2002] NSWCA 337 at [91]: The purpose of a reg 6(2) notice is first, to ensure that attention is given to specific conduct and the circumstances of the conduct, and secondly, to enable the person whose conduct is in question to meet the tendency evidence. The purpose is linked with the decision upon probative value to be made by the court, since only with knowledge of specific conduct and the circumstances of the conduct can a proper assessment be made of the probative value of the evidence in relation to the conduct alleged in the trial. 51 The applicant did not file any notice of the kind required by reg 6 and by r 30.31 of the FCR. 52 The trial in this action commenced on 30 September 2013. The first indication which the respondent had that the applicant may wish to lead a form of tendency evidence was given at a directions hearing on 4 September. Counsel said that the applicant proposed leading evidence from Ms Poppy and outlined that evidence as follows: Ms Poppy's evidence will [form] similar fact evidence, your Honour, in the sense that we say that what happened to Ms Stanley is virtually identical as to what happened to Ms Poppy, that is, they were wanted employees, they got pregnant, they were then basically pushed to one side, they went off on maternity leave, two or a few days before intending to return, they were made redundant, both of them. And we say that there's a similar fact issue [from] that. Counsel went on to say that the proposed evidence would be of a reasonably small compass. 53 At the directions hearing on 4 September, the Court fixed the trial to commence on 30 September. It did this in order to accommodate the request of the applicant for an accelerated trial, bearing in mind that she was due to give birth to her second child at the end of November 2013. The applicant had previously abandoned a request for a joint trial of her action and Ms Poppy's action. 54 The respondent received Ms Poppy's affidavit on 18 September 2013. It then became apparent that the proposed tendency evidence from Ms Poppy was substantial and constituted the entire content of the affidavit which she had affirmed in support of her own action. This meant that SYC had only seven working days before the trial to consider that evidence, and only four working days in which to file its own witness statements in response. 55 SYC acknowledged that it had, in any event, commenced preparation of its defence to Ms Poppy's claim but, given the imminent hearing of the applicant's claim, had given that less priority. It claimed that it was unable, within the short time available, to address in its witness statements in the applicant's claim all the issues raised by Ms Poppy's affidavit. I accepted that that claim was reasonably made. I was satisfied that, within the short time available to it, SYC could not reasonably be expected to respond in the applicant's action to all the matters upon which Ms Poppy relied in relation to her claims. For this reason, I considered that the applicant had not provided reasonable notice. 56 However, I considered it appropriate to take a different view with respect to the evidence which the applicant proposed to lead from Ms Poppy concerning her conversation with Mr Furniss. I considered that this was of a limited and discrete kind so that the respondent should not be embarrassed in addressing it. 57 Accordingly, having ruled that the evidence from Ms Poppy concerning her conversation with Mr Furniss could be significantly probative of the applicant's claim on the same topic, I considered that the want of formal notice should not have the effect that that evidence could not be led. The notice which SYC had of that proposed evidence, by reason of the service of Ms Poppy's affidavit on 18 September, was sufficient to allow it a fair opportunity of addressing it.

Conclusion 58 For these reasons, I permitted the applicant to lead only a limited form of her proposed tendency evidence, namely, the evidence of Ms Poppy concerning the remarks said to have been made by Mr Furniss regarding her taking parental leave. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.