Industrial Relations Commission of New South Wales in Court Session CITATION: Raquel Moreno v New South Wales Department of Sport and Recreation; Heather McLean v New South Wales Department of Sport and Recreation [2005] NSWIRComm 310 APPLICANT (IRC 4/2470) Raquel Moreno APPLICANT (IRC 4/2472) PARTIES: Heather McLean RESPONDENT New South Wales Department of Sport and Recreation FILE NUMBER(S): 2470 & 2472 of 2004 CORAM: Marks J CATCHWORDS: Section 106 proceedings - application to amend summons - new allegations of conduct dating from 1993 - new allegations arguably different to allegations in current summons - no time bar applies - respondent has not demonstrated prejudice - amendment allowed. Industrial Relations Act 1996 LEGISLATION CITED: New South Wales Protected Disclosure Act 1994 CASES CITED: Howitt & Ors v Retec Ltd & Anor (No. 2) (1995) 60 IR 93 HEARING DATES: 08/24/2005 DATE OF JUDGMENT: 09/07/2005 APPLICANTS Ms Brus of counsel Solicitor: Michelle Walsh Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr R deMeyrick of counsel Solicitor: Mr P Rankins Crown Solicitor's Office JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Marks J Wednesday 7 September 2005 Matter No IRC 2470 of 2004 RAQUEL MORENO v NEW SOUTH WALES DEPARTMENT OF SPORT AND RECREATION Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 2472 of 2004 HEATHER MCLEAN v NEW SOUTH WALES DEPARTMENT OF SPORT AND RECREATION Application under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT ON APPLICATION TO FURTHER AMEND SUMMONS [2005] NSWIRComm 310 1 The applicants in these proceedings, Raquel Moreno and Heather McLean, have sought certain relief against the State of New South Wales (Department of Tourism, Sport and Recreation) under s 106 of the Industrial Relations Act 1996 ("the Act"). The proceedings are currently constituted by an amended summons. Each applicant has sought to further amend the summons, which amendments have been resisted by the respondent. 2 It is sufficient for present purposes to describe the proceedings instituted by the applicant Raquel Moreno because the factual circumstances are sufficiently similar to those which apply in Ms McLean's proceedings. 3 The amended summons in which Raquel Moreno is the applicant is directed to a contract of employment between her and the respondent, and an arrangement and employment contract between the same parties which are sought to be declared unfair for the purpose of s 106. There is a further claim, brought in the alternative, for variation by inserting provisions relating to "protection and support of whistleblowers, "safety in the workplace", restrictions on termination and restriction on the undertaking by the respondent of certain conduct said to be "likely to damage, without cause, the confidence and trust in the employment relationship…". The amended summons relates that the applicant commenced employment with the respondent in 1990 and that on 18 September 2002 she made a protected disclosure under the New South Wales Protected Disclosure Act 1994, said to be in relation to allegations of corrupt conduct and maladministration of Department funds by another employee of the Department. There is an allegation that the respondent has failed to take appropriate measures to remove the person against whom the allegations of corrupt conduct were made from the applicant's workplace and protect her, and has failed to offer her a safe working environment at an alternative workplace. There are further allegations referring to resulting medical conditions, inability to return to work, breach of the Protected Disclosures Act by revealing her identity and the taking of "detrimental action" against the applicant. 4 The further amendments which the applicant wishes to make to the summons include allegations that the applicant was subjected to "bullying, harassment and sexual harassment at work" commencing from 1993, the failure of the respondent to deal with complaints about these matters and a further allegation with respect to corrupt behaviour, maladministration and misappropriation by, presumably, another person in a managerial position. Significantly, also, there is an allegation that the contract or arrangement was unfair because "it operated to deny the applicant appropriate protection from bullying and harassment over an extended period of time. There are other proposed amendments which relate to consequential relief. 5 The applicant relied essentially on the power of this Court to amend proceedings as contained within s 170 of the Act. It is not necessary that I traverse the power to amend in any detail because the broad discretion to amend the proceedings was not contested by the respondent. 6 In essence, the respondent complained that the original summons for relief had been filed on 23 April 2004, that a mandatory conciliation process had been undertaken and that the applicant had unreasonably delayed in seeking to amend the proceedings. Furthermore, the amended summons in its current form focuses attention on unfairness following on from the making of a protected disclosure on 18 September 2002. The respondent complained that it would now be forced to deal with allegations of bullying, harassment and sexual harassment at work from 1993. 7 A Reply document, filed by the respondent in answer to the summons in its current form, admits that a number of allegations were made on 17 September 2002 pursuant to the Protected Disclosures Act, states that they were investigated and that were dealt with in an appropriate manner. The Reply document states that the allegations made by the applicant were confined to: "misappropriation or misuse of Departmental funds… harassment and bullying of others…". There is no reference in the Reply document as to whether the applicant made any complaint about sexual harassment and as to the dates upon which the alleged bullying, harassment and sexual harassment occurred. 8 Notwithstanding the reference contained in the proposed further amended summons to conduct of the kind described commencing in 1993, the bulk of the proposed further amended summons is directed to matters which have occurred since the applicant made the protected disclosure. There is, however, a claim that the contract or arrangement was unfair in that "it operated to deny the Applicant appropriate protection from bullying and harassment over an extended period of time". On its face, this is one assertion that is not related to the events following the making of the protected disclosure. 9 I should add that the monetary claim made by the applicant is not particularised but refers to reinstatement of certain sick leave, annual leave, long service leave and other entitlements from 18 September 2002, the date upon which the protected disclosure was made. 10 I conclude, on the basis of such material as is available to the court, that it is more likely than not that the proposed further amended summons will potentially involve a further claim, namely one relating to alleged bullying, harassment and sexual harassment from 1993, together with a claim for some monetary payments referable to that conduct. It is possible that a claim entitled "Compensation for Emotional Distress" will introduce a different basis for the payment of monetary compensation within the proceedings. Whether and to what extent this is so, is not perfectly clear from the manner in which the proposed further amended summons is framed. 11 In my opinion, it will be necessary for the applicant Raquel Moreno to clarify with greater precision the claim which is made against the respondent by reference to allegations concerning the bullying, harassment and sexual harassment commencing in 1993 and the monetary compensation claimed with respect thereto. However, I shall refrain from delaying the proceedings on this basis because, hopefully, the matter may be clarified through communications between the legal practitioners acting for each of the parties. If this cannot be achieved, this aspect of the matter can be dealt with during the case management process before this court. 12 The only time bar which applies to the commencement of proceedings under s 106 of the Act is that contained within ss 108A and 108B. As conceded by the respondent, neither of these provisions apply to the circumstances of these proceedings. Accordingly, in the absence of any inordinate delay and in the absence of the application of principles in the nature of laches, (see Howitt & Ors v Retec Ltd & Anor (No. 2) (1995) 60 IR 93) the only question which arises is whether the allegations contained within the proposed further amended summons are scandalous or otherwise constitute an abuse of process or the litigation of the allegations would unduly prejudice the respondent by reason of the lapse of time. 13 No suggestion of abuse of process was made by the respondent during the course of submissions. No evidence has been filed by the respondent of any prejudice created by the inclusion of allegations concerning conduct going back to 1993. Such prejudice is usually attended by the inability to secure evidence because of the death, indisposition or inability to locate relevant witnesses. In the absence of any such submissions, I do not propose to deal with the matter on this basis. 14 Given that the proceedings were initially commenced on 23 April 2004, I am of the opinion that an amendment sought by the filing of a notice of motion in May 2005 does not constitute such an undue delay as to disentitle the applicant from amending the proceedings. On one view, if the applicant could have commenced proceedings afresh, including the amendments sought to be made, then on a prima facie basis she would be entitled to have the proceedings amended in the manner sought. The respondent said that a significant part of the costs incurred by it in defending proceedings to date have been "thrown away". Although no clarification as to how this has occurred has been given, I propose to follow the current practice of ordering the applicant to pay the respondent's costs "thrown away" by the amendment in an amount assessed in default of agreement. 15 The respondent also submitted that it would be necessary for a further mandatory conciliation to be undertaken because of the amended allegation, and that on this basis the respondent should be paid its costs of participating in that further conciliation conference. To the extent that it is necessary for a such a further conciliation to be conducted, I accept the respondent's argument about costs and such costs would fall within the rubric of having been "thrown away" by reason of the amendment. It may be difficult to determine in a definitive way whether or not a further conciliation is necessary, depending upon the way in which the applicant's case is eventually framed. I shall refrain from ordering further conciliation until the parties have had an opportunity of discussing this aspect through their legal practitioners. The liberty to apply which is granted with respect to all matters which are subject to case management in this court will cover any application for further conciliation. 16 The respondent made written submissions to the effect that no reasonable cause of action is pleaded by the applicant. These reasons for judgment do not deal with that material. If, following discussions between the parties, the respondent wishes to pursue this aspect, application can be made for the proceedings to be re-listed for this purpose. 17 The applicant, having been successful on the notice of motion, should receive a costs order in her favour. 18 The factual background with respect to the application brought by the applicant Heather McLean is sufficiently similar to that which applied to the application brought by Raquel Moreno as to enable me to make the same orders for the same reasons with respect to the notice of motion filed in these proceedings. 19 Accordingly, in each of the matters I make the following orders: 1. The applicant is granted leave to further amend the summons in the form attached to the notice of motion. Such amended summons should be filed and served within 21 days of this date. 2. The respondent is to pay the costs of each of the applicants of the notices of motion in an amount assessed in default of agreement. 3. The applicant in each matter is to pay the respondent's costs thrown away by reason of the amendment, including costs associated with the conciliation conferences commencing on 30 September 2004 in the event that a further conciliation conference is conducted to deal with the summons in its amended form. 4. Liberty to apply generally. 20 I ask that the legal practitioners reach agreement on further directions for the preparation of these proceedings in accordance with Practice Direction 14, and forward a consent document to my Associate within 28 days. If this request cannot be met, the applicants' solicitor is directed to make contact with my Associate and advise her accordingly. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.