Federal Magistrates Court of Australia|2003-07-09

Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277 (9 July 2003)

HUMAN RIGHTS - Sex Discrimination Act 1984 - interim application.

Human Rights and Equal Opportunity Commission Act 1986, ss.46PA, 46P(1), 46PH(1)(I), 46PK(2), 46PO(3), 46PS(2)

Federal Magistrates Court Rules 2001, R4, 4.05(1), 10.01(3)

Travers v State of New South Wales [2000] FCA 1565 (3 November 2000)

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531

Miller v Wertheim & Anor [2001] FMCA 103 (14 November 2001)

Wiggin v Edwards (1973) 1 ALR 497

Field v Commissioner of Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285

1. In an application filed 30 December 2002 by Helen Bender (the Applicant) a claim is made against Bovis Lend Lease Pty Ltd (the Respondent) pursuant to the Sex Discrimination Act 1984 (the SDA). The Applicant has relied upon an affidavit sworn by her on 27 December 2002 (the Applicant's affidavit).

2. The Applicant had made a claim to the Human Rights and Equal Opportunity Commission (HREOC) alleging sex discrimination, sexual harassment and victimisation in breach of the SDA.

3. The complaint was the subject of a Notice of Termination dated

29 November 2002. The original complaint referred to as Attachment B sets out details of the complaints. The Court has received a complete copy of the Respondent's Response to the complaint which had been filed with HREOC. It is noted that HREOC terminated the complaint pursuant to s.46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act).

4. The application currently before the Court relates to interim orders sought by the Respondent in its Response filed on 28 January 2003. In the Response, apart from seeking orders that the Application be dismissed and that the Applicant pay the Respondent's costs, the Respondent further claims the following interim orders:-

"The matters in paragraphs 10-18, 37-45, 66-67, 68-70 and 84-86 of the affidavit of Helen Louise Bender sworn 27 December 2002 be struck out on the basis that they do not conform with the requirements of section 46PO(3) of the Human Rights and Equal Opportunity Act 1986."

5. In its reasons for decision HREOC provides a useful summary of the complaint as follows:

"Ms Bender alleges that she was sexually harassed by numerous subcontractors in the course of her employment as an on-site engineer with the company. She claims that she began her employment with BLL on 18 January 1999. She alleges that the acts of sexual harassment occurred between 18 January 1999 and 30 October 2002, whilst working on two projects. The first project was the Royal Brisbane Hospital (`the RBH project') between 18 January 1999 and 2 November 1999 and the second project was the Amberley RAAF Base Development (`the Amberley project') between 3 November 1999 and 30 October 2000.

Ms Bender claims that at the RBH project comments were made about her breasts and she further alleges that she was exposed to sexual drawings, sexual pictures, sexual stories and sexual poems.

Ms Bender claims that she raised these incidents of sexual harassment with Mr David Hanley, the Construction Manager, at the beginning of the Amberley project. She states that initially he said that he would act harshly if similar incidents were to occur during this project. She also claims that the OHS Officer, Mr Rutherford, was made aware of the RBH project incidents. Ms Bender alleges that on 26 September 2000, when she was locking up the site and putting the bins inside the men's toilet, she noticed a sexually explicit cartoon with the name `Helen' written next to the female figure. She states that she raised the matter with Mr Hanley, and Ms Bender alleges that he smirked as if it was funny. Ms Bender further states that Mr Neville, the General Foreman approached her about the allegations but the company failed to properly investigate her complaint.

Ms Bender claims that on 30 October 2000 she was informed that the Amberley project could not sustain her position and that due to the down turn in the workload, the company had no other position for her and that she would be made redundant that day."

6. The Respondent provided a detailed Response to the claim and attached numerous documents. Again it is useful to set out the summary of the response referred to by HREOC:

"The respondent claims that during her employment Ms Bender made only one complaint to the company and that it was in relation to an incident on the Amberley project. In addition, the company states that Ms Bender made a complaint after the termination of her employment. It denies that Ms Bender was harassed or discriminated against by the company or any of its employees during her employment. The company claims that complaints raised by Ms Bender were investigated and appropriate action was taken. The company also states that they are not vicariously liable for any conduct that may have been held to be unlawful because it took all reasonable steps to prevent the unlawful conduct.

In relation to the termination of Ms Bender's employment, the company claims that this was for reasons of redundancy. The company states that Ms Bender's termination occurred in a context of a downturn in the construction industry and changes in its corporate structure. The company claims that it did not appoint another Site Engineer to the project after Ms Bender's position was made redundant."

7. The Respondent filed an Affidavit of Peitra Alisa Moffatt sworn

28 January 2003 in support of its application to strike out various parts of the Applicant's claim. Essentially the application is based upon the submission that the allegations set out in the paragraphs to which I have referred did not form part of the complaint before HREOC.

8. When the matter was before the Court on 13 February 2003 I made orders that the parties should file and serve submissions and affidavits in relation to the interim application to strike out part of the Applicant's claim. Both parties provided written submissions and at the hearing on 13 March 2003 made further submissions.

Whether the Court has power to strike out paragraphs of the supporting affidavit

9. A threshold issue in the matter which had been agitated by the parties is whether or not the Court should entertain an application to strike out part of the claim. It was submitted on behalf of the Applicant that the Respondent's application to strike out part of the claim should be made at the hearing so that the Court has the benefit of the entirety of the evidence. Reliance was placed upon the decision of the Federal Court in Travers v State of New South Wales [2000] FCA 1565 (3 November 2000) (Travers). In that case the Court dealt with an application for summary dismissal of the application on the basis that there was no reasonable cause of action disclosed. The Application had followed termination by a delegate of the President of HREOC of a complaint made under the Disability Discrimination Act 1992. The summary dismissal application of the Respondent was based on two grounds. The first ground was based on a proposition that the discrimination alleged in the application to the Court was not the same or the same in substance as the discrimination which was the subject of the terminated complaint and does not arise out of the same or substantially same acts, omissions or practices which were the subject of the terminated complaint and therefore does not meet the requirements of s.46PO(3) of the HREOC Act. The other ground which is not relevant to the present application before this Court is that an argument was raised by the Respondent that the matter before the Federal Court was not of a kind which would amount to discrimination forbidden by the relevant legislation.

10. I was referred to part of paragraph 10 of the Court's decision in Travers. However, it is appropriate in my view to set out the whole of paragraph 10 and then refer to the passage upon which Counsel for the Applicant relied,

"10. There is no doubt that the affidavit lodged with the application to the Court alleges, as the unlawful discrimination relied on, the same facts as those asserted in the letter of 10 February 1997. To the extent that the deponent gives evidence of earlier events, that evidence, it seems to me, covers substantially the same ground as the references, in the account in the letter of 10 February 1997 of the meeting of 16 February 1996, of the basis on which the principal and deputy principal were said to be well aware of the applicant's needs. There is an assertion in the affidavit that the principal had during 1995 refused to provide the applicant with access to the disabled toilet. If by that it was intended to raise, as a separate matter of complaint, refusals earlier than that originally complained of, it may be that the applicant would not, at the hearing, be permitted to do so. But the proceeding is not, in my view, to be wholly dismissed because - if it is the case - the application, though alleging the same discrimination as that originally complained of, also alleges similar discrimination at an earlier time. An affidavit in support of an application cannot, as a pleading can, be struck out in part. Equally, there may be a question, if at trial the applicant seeks to rely on certain of the evidence she has filed, of the relevance of that evidence, but that is a matter to be dealt with at trial, not on the present application."

11. In the present case it was submitted by the Applicant that this Court should not proceed to strike out any part of the Application but instead should hear evidence and deal with the matter at trial.

12. The Respondent submitted that Rule 4 of the Federal Magistrates Court Rules 2001 (the Rules) which provides for the commencement of the proceeding by filing an Application with an Affidavit stating the facts relied upon. Although there is no system of pleadings provided by the Rules for the commencement of claims of unlawful discrimination, it was submitted that Rule 4.05(1) clearly provides a requirement for an affidavit stating "the facts relied upon".

13. Reliance was placed upon s.46PO(3) of the HREOC Act which provides as follows:

"46PO(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint."

14. It was submitted by the Respondent that where the Affidavit is required to state "the facts relied upon" the Court is not assisted by the decision of the Federal Court in the Travers case suggesting an affidavit in support of an application cannot, as a pleading can, be struck out in part.

15. It is further submitted by the Respondent that the Court should not rely upon the Federal Court decision in Travers and reference was made to the fact that s.46PO(3) contains no limitation which would prevent the Court from identifying and striking out the issue which otherwise would contravene the purpose and intent of s.46PO(3) of the HREOC Act.

16. The Respondent referred the Court to the decision of Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 and submitted that that decision provides a basis for establishing the following principles:

* The policy of the HREOC Act is that allegations will undergo the conciliation process, before forming part of an application to the Court.

* It was not Parliament's intention that events which are part of an alleged ongoing process of discrimination can be included in an application were they have not been raised in the complaint before HREOC.

* Facts which are different in substance from those alleged in a terminated complaint may not be alleged in an application to the Court.

17. The Respondent referred the Court to a decision of Driver FM in the matter of Miller v Wertheim & Anor [2001] FMCA 103 (14 November 2001). In that matter the Court referred to the unreported decision of Katz J in Charles v Fuji Xerox Australia Pty Ltd (2000) FCA 1531

(30 October 2000). It was submitted by the Respondent that both cases provide some authority for the proposition that there is a requirement to consider the contents of an affidavit at an early stage as the issues are related. Driver FM considered both the Federal Court decision in Travers and Charles v Fuji Xerox Australia Pty Ltd and the Court still proceeded to analyse the material before the Court compared to the material raised in the complaint before HREOC. His Honour concluded that there was no cause of action and the matter was summarily dismissed.

18. The Applicant in the Fuji Xerox case raised a complaint alleging disability discrimination in employment. There was an issue relating to the period of time covered by the complaint and whether the Applicant in proceedings before the Federal Court could allege acts of discrimination which had not been alleged in the terminated complaint. It is not necessary to set out the facts and circumstances of that case save to say that the Court was required to consider s.46PO(3) of the HREOC Act. The Court referred to the Senate Explanatory Memorandum for the Bill which elaborated on the intended operation of the then proposed paragraph 46PO(3)(b) of the HREOC Act by saying:

"This second limb is intended to cover situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances. For example, an Asian woman may make a complaint to HREOC alleging that her dismissal from employment amounted to discrimination on the ground of her sex. On the basis of things said or done during the inquiry or conciliation process, the woman may form the view that her dismissal also amounted to discrimination on the ground of her race. If the complaint cannot be conciliated and is terminated, and the woman makes an application to the Federal Court in respect of the terminated complaint, this paragraph may permit her to allege racial discrimination in that application."

"It appears to me that the first limb of subs 46PO(3) of the HREOCA was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work (see s.17 of the DDA).

On the construction which I give to subs 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant's earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant's earlier complaint to the Commission. However, I find nothing, either in the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, in so far as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment.

I add that a construction of subs 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment appears to me to be consistent with the policy of the HREOCA of ensuring that there exists an opportunity for the attempted conciliation of complaints before they are litigated: compare sub ss 46PF(1) and (4) of the HREOCA. (A similar policy of ensuring an opportunity for attempted conciliation in the first instance was also apparent in the DDA before its amendment by the amending Act.) I note in that connection the following exchange when the Opposition sought to amend in the House of Representatives, after its second reading, the Bill which became the amending Act. The Opposition spokesman moved (see HR Hansard, 11 March 1999, p 3754) an amendment whose effect he described as being "to enable complainants to amend a complaint before the Federal Court proceedings, even though that particular issue may not have been dealt with in the commission". The justification which he offered for the proposed amendment was as follows:

`These matters of discrimination can be flexible in the sense that events can occur which are part of an ongoing process of discrimination but may not themselves have been pleaded or raised in the conciliation proceedings. So we say it is appropriate for a complainant to be able to amend the complaint after conciliation and before commencement in the Federal Court.'

The Government rejected that proposed amendment, the Attorney General saying (see HR Hansard, 11 March 1999, p 3755),

`The government disagrees that there should be a power to add further allegations of discrimination after a matter has been determined in the commission and prior to applying to the Federal Court. This is consistent with the policy of requiring discrimination complaints to go through the HREOC conciliation process.'

20. It was submitted that in the present case given the method prescribed by the Rules for the commencement of applications alleging unlawful discrimination and the power provided in Rule 10.01(3) of the Rules which permit the Court to make orders or directions in relation to amendment of documents and any other matter the Court considers appropriate, that the Court does have power to strike out those allegations in the application which contravene s.46PO(3) of the HREOC Act. In the circumstances it is submitted that the strike out application is valid.

21. In my view having regard to the powers referred to by the Respondent, the Court clearly needs to ensure that affidavit material before the Court properly identifies issues relied upon which can be regarded as issues which are the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. It is within the power of the Court to determine those parts of affidavit material which should be struck out. To do so is not to embark upon a process which might be better left to the trial of action but rather to ensure that issues are properly identified consistent with the obligations of the Court in considering the unlawful discrimination alleged in this application compared with the discrimination which was the subject of the terminated complaint. It is appropriate for that matter to be considered at an early stage of the proceedings particularly where there is a potential for voluminous affidavit material raising numerous issues perhaps not raised before the Commission and therefore not subject to the conciliation procedures of the Commission. To allow the affidavit material to be dealt with at trial may involve additional expense to a Respondent in meeting allegations not previously made the subject of a complaint before HREOC.

22. I do not interpret the decision of the Federal Court in Travers to apply to all cases and nor does it seem to me that the Court in that case was seeking to suggest that in all matters applications to strike out part of an affidavit should be deferred to the trial. The Court in that case was concerned instead with the issue of whether or not the application should be wholly dismissed and although it certainly states that an affidavit should not, as a pleading, be struck out in part, it is relevant to note that in the Travers case the Court was satisfied that the material sought to be raised may involve a separate matter of complaint which may not be regarded as admissible at the hearing. In the Federal Magistrates Court, relying as it does on the affidavit material in lieu of pleadings and/or points of claim, it is important that the Court in managing a docket system identifies at an early stage matters which might be regarded as irrelevant to the claim and/or otherwise in contravention of s.46PO(3) of the HREOC Act. The case management decisions need to be made by the presiding Federal Magistrate on each docketed application.

23. I am satisfied therefore that the Court in administering the cases before it has a discretion to at least consider whether to strike out certain parts of an affidavit prior to the trial of the action in human rights claims where it is important to ensure that the Applicant complies with the requirements of s.46PO(3) of the HREOC Act. I further adopt the reasoning of the Court in the Fuji Xerox case and in particular note the reference in that case to the fundamental principles which apply to prevent a party from relying upon a cause of action which accrued after the commencement of a proceeding and which in the circumstance of human rights claims include preventing a party from relying on material which was not properly the subject of the complaint before HREOC and would not otherwise be accommodated under s.46PO(3)(b) of the HREOC Act. To do so would be to extend the legislation by permitting a party to add further allegations of discrimination after the matter had been determined by the Commission and prior to applying to the Court and that would not be consistent with the legislative intent in my view.

24. I should add that in general terms the matter of principle is similar to fundamental principles identified by Mason J in Wiggin v Edwards (1973) 1 ALR 497, cited by Katz J in the Fuji Xerox case, when referring to the District Court not being a strict Court of pleading Mason J at 515 stated,

"... There is no good reason for concluding that in the absence of appropriate statutory provision, or the consent of the defendant [the plaintiffs] could succeed in obtaining a judgment on a cause of action which had not accrued at the date of the plaint ..."

25. Similar principles apply to the Federal Magistrates Court which likewise is not a Court of pleading and in human rights claims is bound by the statutory provisions of the HREOC Act and in particular s.46PO(3).

Whether the Applicant can rely upon statements made at a conciliation hearing

26. In dealing with this interim application the Applicant sought to rely upon an affidavit sworn by Ms Crichton-Browne on 4 March 2003. The Respondent objected to the Applicant relying upon that affidavit as it referred to matters which were the subject of a compulsory conference which had been the subject of an order under the HREOC Act pursuant to s.46PK(2). It was submitted on behalf of the Respondent that the Applicant could not claim that matters now relied upon in the Applicant's affidavit formed part of the complaint as they had been raised at the mediation or conciliation which occurred on 6 November 2002. It was submitted that the compulsory conference is required pursuant to s.46PK(2) of the HREOC Act to be held in private. Privacy according to the New Shorter Oxford Dictionary `private' means, "not public, not open to or shared with or known to the public, not official ... confidential, secluded". The Macquarie Dictionary defines `private' to mean "removed from or out of public view or knowledge; secret."

27. The private nature of the conference it was submitted is reinforced by other provisions in the HREOC Act which include a prohibition directed to the president of HREOC from setting out or describing in a written report to the Court anything said or done in the course of a conciliation proceeding including anything said or done at a conference (s.46PS (2)). There is nothing in the relevant authorities to support the suggestion that any matter raised at a compulsory conference forms part of the complaint.

28. The affidavit sought to be relied upon sworn by Ms Crichton-Browne according to the Respondent transgresses the principles of privacy in relation to what had occurred at the compulsory conference.

29. It was further submitted by the Respondent that what constitutes a complaint is set out in s.46P(1) of the HREOC Act. It is the written complaint lodged with the Commission alleging unlawful discrimination. Whilst there is power to amend the complaint with the leave of the President pursuant to s.46PA, it is noted in the present case that there was no amendment made.

30. The Applicant sought to rely upon matters raised at the conciliation conference and it was submitted that s.46PK in referring to the conference being in private simply means that other parties and members of the public should not be privy to the conference. Reference was made to sections in other legislation to which I do not need to refer which specifically state that any matters raised at a conference are inadmissible. There is no such provision forming part of s.46PK and therefore it was submitted by the Applicant there is no legislative protection against anything that has been said at a conference being rendered admissible in evidence. Reference was made to common law principles of privilege and a distinction drawn, based upon the authority of Field v Commissioner of Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285, between matters which might be regarded as admissions during privileged discussions compared with objective facts which may be ascertained during the course of those negotiations. It was submitted that the affidavit in the present case does not contain any statements of admissions or concessions made by the Respondent at the compulsory conference but merely sets out facts that were stated by the Applicant as facts upon which the case was based. Accordingly there is no prejudice to the Respondent if that evidence were to be admitted.

31. It was further submitted by the Applicant that the restriction upon the President of HREOC from reporting in relation to anything said or done at a compulsory conference is confined only to a report by the President and goes no further. It would be wrong to construe that as indicating that there is a further restriction upon the admissibility of evidence arising from that conference.

32. By way of response Ms Dann for the Respondent submitted that the preclusion of the capacity of the President to report to the Court about things said or done in the course of conciliation proceedings should be considered in the light of the scheme of the HREOC Act which provides for a compulsory conference with parties directed to attend and participate in that conference. The fact that it is a compulsory conference with a specific statutory statement that the conference be held in private demonstrates, according to the Respondent's submissions, that there is some contemplation that the matters that are raised in that compulsory proceeding cannot be taken outside the compulsory proceeding.

33. In my view, dealing with this preliminary issue, whilst it is clear that the legislation only refers to the conciliation conference being held `in private' and accepting the dictionary definitions, it is relevant to note that it is a compulsory conference. It would be somewhat artificial and inconsistent if a prohibition is placed upon the President reporting to this Court anything which may be said to be done in the course of conciliation proceedings, and to then allow parties by affidavit evidence or otherwise to refer to what may or may not have been said during the course of that conciliation conference at a subsequent court hearing.

34. To permit the Applicant to rely upon the affidavit of Ms Crichton-Browne which refers to the conciliation conference would be to permit conduct which is inconsistent with the intent and spirit of the HREOC Act and in particular would set an unfortunate precedent in relation to the conduct of conciliation proceedings to the extent that parties participating as directed in a compulsory conference would be less likely to openly contribute to the course of the discussion if it were thought that subsequently affidavit material would be lodged in Court reciting the negotiations and/or discussions. It is sufficient to note that the conciliation conference which is compulsory should be held in private and in the circumstances in the exercise of my discretion in relation to the admissibility of evidence I am not prepared to permit the Applicant to rely upon the affidavit sworn by Ms Crichton-Browne.

I do not accept that it is appropriate to draw a distinction between statements of admissions or concessions made by the Respondent at the compulsory conference compared with those statements which may be said to merely set out the facts that were stated by the Applicant as facts upon which the case is based. To do so would be to draw an artificial distinction and would further elevate issues raised at a private conference to the status of the basis of a complaint without referring to that material in a document forming part of the material properly said to be the original complaint. To permit reliance on the material for that purpose would be inappropriate.

The Respondent's objections to the Applicant's affidavit

35. The Respondent objects to certain paragraphs of the Applicant's affidavit identified in the Response. It is convenient to deal with the objections in order and to provide a ruling after considering the submissions made on behalf of the Applicant and the Respondent.

Paragraphs 10-18 and 84-86 entitled "No female toilet"

Paragraphs 66-67 entitled "Hiring of a stripper"

36. The Affidavit refers to the issue of providing a female toilet at the Royal Brisbane Hospital Re-development Project from 18 January 1999 to 2 November 1999. Paragraphs 84 to 86 refer to an issue of providing female toilets at the Amberley construction site. It was submitted by the Respondent that the events in the terminated complaint outline alleged behaviour directed towards the Applicant by unidentified persons many if not all of whom were not employed by the Respondent. Whilst it was noted that complaints were made arising out of the employment at the Royal Brisbane Hospital project between January 1999 and October 2000, there is no reference in Attachment B, being the original complaint attached to the notice of termination, where reference is made to the failure to provide a female toilet at the Royal Brisbane Hospital project. Likewise it was submitted there is no reference in the terminated complaint of the failure to provide female toilets at the Amberley Development Project.

37. The Respondent submits this allegation together with the allegations in paragraphs 66 to 67 dealing with the alleged hiring of a stripper are not the same or substantially the same and nor do they arise out of the same act, omission or practice as the events detailed in the terminated complaint. The events in the terminated complaint outline alleged behaviour directed towards the Applicant by unidentified persons many if not all of whom are not employed by the Respondent. It is submitted the allegations now set out in the paragraphs of the affidavit to which

I have referred allege `direct conduct' by the Respondent.

38. The Respondent submits the allegation deals with the alleged hiring by the Respondent of a female stripper in or about September/October 1999 as part of a send off celebration for two of the male employees who were leaving the RBH site.

39. Again it is submitted by the Respondent that these allegations relating to the hiring of the stripper are not the same or substantially the same or nor do they arise out of the same act. The events in the terminated complaint outline alleged behaviour directed towards the Applicant by unidentified persons many if not all of whom are not employed by the Respondent. It is submitted the allegations now set out by the Applicant refer to alleged "direct conduct" by the Respondent. Hence that should now not form part of the material before this Court as it was not set out in the same form in the original complaint before HREOC.

40. The Applicant in relation to this issue relied upon a general submission that the court should have regard to the general discretion provided by s.46PO(3) namely that the unlawful discrimination alleged in the application must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint. It was not submitted by the Applicant in general terms that the court needs to go further by importing some additional latitude for the benefit of the Applicant beyond that statutory provision. It was noted however that the complaint formulated by the Applicant which was before HREOC had been prepared without the assistance of a legal advisor and that an analysis of that complaint should not be unduly technical. It was further submitted that this should not be a process of trying to `marry up' word for word or paragraph by paragraph the allegations in the affidavit with the complaint to HREOC.

41. In relation to the specific allegations concerning failure to provide female toilets set out in paragraphs 10 to 18 and 84 to 86, it was submitted by the Applicant that the court is able to deal with the original complaint set out in Attachment B to the termination notice. Reference is made in the original complaint in various forms either by email or otherwise to incidents that occurred in relation to toilets. One of those incidents concerned assertions by employees or subcontractors of the Respondent that the Applicant was "sticky beaking" and she should not have observed the offending material in male toilets. It is submitted by the Applicant that this is part of the factual material which is relied upon and provides sufficient nexus between the acts omissions or practices set out in the original complaint to HREOC compared with the Application before this court. Reference was made to observations of the Applicant of writing on toilet walls and it was submitted that had proper provision been made for female toilets then the Applicant would not have had cause and/or any reason to make observations of the offending material. It was further submitted that if there is any defence to be raised about the conduct of subcontractors or that in some other way the Respondent would not be vicariously liable then that would be a matter for evidence and submissions at the trial.

42. The Applicant submitted that the issue of the stripper referred to in paragraphs 66 to 67 whilst not constituting facts exactly identical with the complaint before HREOC were substantially the same as the complaints which were made to HREOC. The same, substantially the same or similar acts, omissions or practices of a sexually explicit nature were referred to in other parts of the complaint and the events concerning the stripper were said to be substantially the same acts omissions or practices as set out in the complaint.

43. I rule that the issue of the failure to provide toilets which was the subject of the complaint in paragraphs 10 to 18 and 84 to 86 should remain. In my view it is at least arguable that in the present case the material is relevant to rebutting suggestions that in relation to other complaints the Applicant should not have made observations of alleged offensive material. It is arguable in my view that the failure to provide any or any adequate female toilets on the relevant sites in any event is a matter which could be said in substance is the same as the unlawful discrimination which was the subject of the terminated complaint as it may be argued that it is inextricably associated with those complaints concerning observations of alleged offensive material in male toilets. The court should not strike out paragraphs of an affidavit which may at least be said to be arguable and contains material that is relevant or otherwise complies with the statutory requirements of s.46PO(3) of the HREOC Act. To that extent this process applies a similar test to an application for summary dismissal and the Respondent will have an opportunity to test the material at trial.

44. In relation to the issue of whether a subcontractor rather than the Respondent is liable for any allegations in general that is again a matter which should be raised at trial for and on behalf of the Respondent. Although it may be argued that the Respondent is put in an awkward position where it had to initially meet a direct allegation against it and then meet an allegation against its subcontractors, it seems to me that in the present circumstances the knowledge of the Respondent on-site of various subcontractors is well within the Respondent's domain. The claim at this stage should not be unduly restricted in circumstances where the Applicant has little knowledge of the relationship between the Respondent, its employees and/or subcontractors.

45. The issue concerning the stripper complaint is different. There is no reference to this complaint in the material and it is not sufficient in my view to permit those allegations to remain in circumstances where a specific complaint about a particular event is now sought to be relied upon which at no time formed part of the material before HREOC. To suggest that one discrete event alleged to be offensive should be included in the proceedings before this court on the basis that it is of a similar kind to other events is not sufficient. In my view there is no nexus between this event and the other matters which are the subject of the complaint and I rule that paragraphs 66 to 67 be struck out.

46. This issue arose during the Applicant's employment at the RBH site and is alleged to be connected with another incident alleged to have occurred in January 1999 where a subcontractor had set up a `pool' to bet on whether the Applicant's breasts were real. The allegation by the Applicant is that in the context of that complaint she was advised that the pool had been her fault because she wore shorts to work. The Applicant purchased long pants which she then wore to work though on very hot days still wore shorts.

47. It was submitted by the Respondent that in the terminated complaint there is nothing further than an assertion that a foreman of the Respondent had spoken to the Applicant "about wearing shorts on site".

48. The Respondent submits that this dealt with an alleged assertion that because the Applicant wore shorts on site the behaviour was her fault and her subsequent response to that alleged assertion is not the same or substantially the same nor does it arise out of the same act, omission or practice as the events detailed in the terminated complaint. In the terminated complaint there is nothing further than an assertion from the Applicant that a Mr Kyte "spoke with me about wearing shorts on site". There is no assertion in the terminated complaint that the words were uttered at the time or any other time, that the Applicant was subjected to any inappropriate conduct because she wore shorts on site or that she took any steps consequent upon the discussion. The later allegation purportedly supports an allegation, according to the Respondent, of victimisation by Mr Kyte, foreman, and therefore vicariously against the Respondent as the employer. It is submitted for the Respondent that this allegation goes significantly beyond what had been alleged in the terminated complaint. The reference to being spoken about in relation to wearing shorts was conceded to be part of emails attached to the original complaint. It is common ground that that email contains the reference to the following:

"Kyte, after speaking to the above, called me into his office, and speaks to me about wearing shorts on site. The shorts I wear on site are similar to the shorts the C & C men wear on site."

49. It was submitted by the Applicant that the reference in the email to Mr Kyte referred to above is, in substance, the same as the unlawful discrimination which was the subject of the terminated complaint.

50. In my view the Applicant's submission is correct. Whilst the extent and nature of that complaint is now the subject of further elaboration

I am satisfied that it was part of the material in the terminated complaint which is in substance the same as the material placed before this court in the relevant paragraphs of the affidavit. Hence it is not appropriate to strike out those paragraphs.

51. It is alleged that sub-contractors of the Respondent had pornographic material in their site sheds and that the Applicant avoided going into those sheds. It is alleged the Respondent's employees were aware of the pornography in the site sheds and the Applicant was required to enter those sheds. It is submitted by the Respondent that the terminated complaint contains no such references. It is not clear, according to the Respondent, how the matters are said to be the responsibility of the Respondent. In any event this would appear to have been raised for the first time as conscious behaviour by the Respondent's employees which it is submitted goes beyond what is contained in the original complaint.

52. The Applicant submitted that the allegations set out in these paragraphs are again in substance the same as the subject of the terminated complaint. Reference is made to emails and the complaint which referred specifically to "sexual pictures, sexual sketches (some full size), sexual stories, sexual poems and diagrams of myself that covered the toilet walls on-site".

53. Although that complaint refers to specific areas where the alleged offensive material was placed it was submitted there was sufficient nexus between that general complaint and pornography in subcontractors offices to permit the paragraphs to remain.

54. In my view although the nexus between what was placed on the toilet walls and what is now said to be the complaint of allegedly offensive material in subcontractors offices may not be particularly strong, I am satisfied there is sufficient nexus to permit those paragraphs to remain in the affidavit on the basis that there is a general suggestion of the Respondent permitting material of this kind to be displayed. There is at least sufficient to argue at this stage that the complaint is in substance the same as the complaint which was the subject of the terminated complaint.

55. I accept that the source of the material whether it be by employees of the Respondent and/or its subcontractors will be a matter for evidence and further accept there may be some force in a suggestion that the Applicant should provide points of claim with particulars in the event that the Respondent finds that the allegations are too vague to enable a reasoned and considered evidentiary response.

56. The ruling in relation to the paragraphs which were the subject of objection is set out in this judgment and unless required to do so it is not proposed to make any further orders other than directions which may be required in relation to the further hearing of this application.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the ruling of McInnis FM

Discrimination Act 1984

Rights and Equal Opportunity Commission Act 1986

Discrimination Act 1992

Magistrates Court Rules 2001

Human Rights and Equal Opportunity Act 1986

Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277

At a glance

Court

Decision date

Source

Judgment (103 paragraphs)

Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277 (9 July 2003)

Parties

Legislation Cited (5)

Cases Cited (2)