Case: Lawrance v Commonwealth (No 4) [2007] FMCA 1408
Outcome: cited
It would also be erroneous to conclude that it was the manner in which the Federal Magistrate resolved the question as to the ambit of the conduct complained of to the Commission as being the sole determinant as to whether evidence was either admitted or excluded -- that was but one of a number of reasons given for the conclusions reached. Thus, in Lawrance v Commonwealth (No 4) [2007] FMCA 1408 the Federal Magistrate addressed the admissibility of evidence and concluded in part as follows: [18] Fourthly, I have rejected very extensive material which amounts to no more than submissions repeating the general contentions of fact and law made in the applicant's points of claim documents, her particulars and her written submissions. These parts of the applicant's affidavits serve no useful function in assisting the Court or respondents to understand the applicant's case, and are embarrassing to the proceeding. I have therefore rejected those parts. ... [21] Furthermore the alleged conduct of these other persons prior to 2005, as narrated by the applicant in her affidavits, does not in my opinion carry any probative assistance towards establishing, directly or indirectly, the particular conduct complained about in this proceeding, nor its relevant character under the anti-discrimination legislation invoked by the applicant, nor its relevant effects on the applicant. In my opinion, it is inadmissible under the relevancy test in s 55. 35 The other fundamental error identified by Ms Lawrance is said to be the manner in which the Federal Magistrate identified the " comparator " for the purposes of the Disability Discrimination Act 1992 (Cth). This alleged error, it is said, emerges from the following observations of the Federal Magistrate: [3] After hearing all the relevant evidence, including oral evidence from Ms Lawrance and all the personal respondents, I have decided that her application fails at its factual foundations. Ms Lawrance did not, at any stage in the proceeding, tender evidence which gave any substance to her allegations that the personal respondents acted, either individually or together, pursuant to a programme, policy, understanding or arrangement which imputed her with mental illness or other impairment amounting to a "disability" under the Disability Discrimination Act 1992 (Cth). Nothing in their individual conduct imputed her with a disability, nor amounted to sexual harassment or discrimination under the Sex Discrimination Act 1975 (Cth). She was not victimised by any of them, nor by their employers nor other government agencies, as a result of her earlier complaints. She was treated no differently than any unimpaired litigant acting for herself or himself in similar circumstances. The conduct of the personal respondents was entirely innocent, and did not amount to any of the breaches of discrimination legislation which are alleged. There was no conduct on their part for which their employers, or the Commonwealth, or the State of NSW, are liable. 36 The relevant Ground of Appeal contends as follows: ... Federal Magistrate Smith has acted upon a wrong principle and failed to take into account a material consideration ... The definition of 'disability' is that given under section 4(K). The comparator is not correctly identified as "any unimpaired litigant." The comparator is a person who is not being imputed with a psychiatric impairment or mental illness, and, is female. ... 39 The Grounds of Appeal also seek to put in issue the procedural fairness extended by the Federal Magistrate to Ms Lawrance. The grounds are variously expressed and range from contentions that procedural fairness was denied by reason of the failure to consider evidence or submissions to the manner in which his Honour expressed his reasons for interlocutory applications. The Magistrate in one interlocutory decision ( Lawrance v Commonwealth (No 4) [2007] FMCA 1408) thus excluded evidence of events prior to 2005 and stated in part as follows: [23] ... The prejudice the respondents face in being forced to address all of that history is clear, and, in my opinion it should be excluded under s 135 of the Evidence Act ... One Ground of Appeal seeks to contend that "nowhere is such prejudice identified, and its existence is unclear or not clear ". It is said that the Federal Magistrate has denied the now Appellant procedural fairness. 40 Grounds of Appeal asserting a denial of procedural fairness, it is considered, have little if any prospects of success. The Federal Magistrate has made rulings on the ambit of the complaint and that ruling was part of his Honour's approach to the evidence to be adduced. Extending the evidence beyond the period of time encompassed by the complaint would clearly expose the Federal Magistrates Court and the Respondents to further time being expended in the pursuit of that which was held to be irrelevant. The " prejudice " in doing so is readily apparent. In this Court, Counsel for the Second Respondent informed the Court without objection that subpoenas were issued to all of the individual Respondents to attend to give evidence. And they did so. 41 In addition to submitting that her Notice of Appeal had such prospects of success as to not warrant an exercise of the discretion to order security, a further principal consideration relied upon by Ms Lawrance was her impecuniosity. 42 All Respondents, for the purposes of the present Motion , conceded that Ms Lawrance was suffering financial hardship and would not be able to provide security. 43 All Respondents nevertheless sought security.