Background
Alfreda Garnsey, a 72-year-old administrative employee of Minter Ellison who had not worked since about February 2022, brought substantive claims alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) and adverse action under s 340 of the Fair Work Act 2009 (Cth). Minter Ellison denied those claims. For this interlocutory application, the Court proceeded on the basis that Garnsey had chronic depression, dyslexia and autism spectrum disorder, while noting that those conditions would still need to be proved at trial.
Before the final hearing scheduled for September 2026, Garnsey sought extensive measures to assist her participation and testimony. These included restrictions on the form and pace of cross-examination, accessible presentation of documents, frequent breaks, testimony by audiovisual link from a low-stimulus room, a communication intermediary, an independent support person, advance scheduling, and a direction that certain aspects of her presentation not support adverse credibility findings. Minter Ellison opposed many of the requested measures, and the application was determined on the papers.
The Court’s Holding
Justice Shariff accepted the application in part. The Court approved Garnsey giving evidence by audiovisual link, regular breaks of 10 minutes after every 20–30 minutes of testimony, a trial plan providing advance structure, and the presence of an identified independent support person under a protocol designed to prevent coaching. The parties were directed to submit consent or competing proposed orders implementing the reasons.
The Court declined to impose detailed advance rules governing cross-examination or document use, appoint a communication intermediary, or predetermine how pauses, delays, emotional expression or breaks would affect credibility. Shariff J held that the trial judge could regulate questioning and document access as difficulties arose, informed by the medical reports and assisted by counsel. A communication intermediary was not justified on the limited evidence because of the risk that Garnsey’s evidence might be filtered through another person. Credibility issues were left for assessment after the evidence and the parties’ submissions.
The governing consideration was practical procedural fairness to all parties. The Court explained that the Disability Discrimination Act does not apply to judicial officers performing judicial functions, so the requested courtroom measures were assessed through the Court’s case-management powers and duty to conduct a fair hearing—not as statutory adjustments required by that Act.
Key Takeaways
- The Federal Court may tailor trial procedures to a witness’s medically supported needs, but accommodations must preserve a fair hearing for every party.
- Audiovisual testimony, scheduled breaks, advance trial planning and an independent support person were appropriate accommodations on the evidence presented.
- The Court refused rigid advance controls on cross-examination, a communication intermediary and predetermined credibility protections, leaving those matters to judicial management at trial.
Why It Matters
The decision illustrates the Federal Court’s pragmatic approach to disability-related participation needs in civil litigation. Medical evidence can justify meaningful changes to how testimony is received, but proposed measures remain subject to the adversarial system’s requirements, including effective cross-examination and unfiltered witness evidence.
For practitioners, the reasons emphasize the value of concrete medical evidence, a workable trial plan and safeguards defining the role of anyone assisting a witness. They also show that some concerns may be better managed dynamically by the trial judge than through detailed pretrial orders.