Chen v Birbilis

INTRODUCTION 1 On 1 February 2016, the respondents, Monash University, Nick Birbilis, and Edwina Cornish (who will be referred to as "the Monash parties"), filed an interlocutory application seeking orders under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) that the proceeding brought by the applicant, Qizhi Chen, be summarily dismissed on the ground that Ms Chen has no reasonable prospect of successfully prosecuting the proceeding.

THE ORIGINATING APPLICATION 2 On 8 January 2016, Ms Chen commenced the proceeding by filing an originating application. In the originating application Ms Chen makes the following allegations: On 12 May 2008, she commenced employment at Monash University in the Faculty of Engineering; On 5 October 2011, she instituted a complaint of sexual discrimination relating to her employment in the faculty; On 10 April 2014, she was suspended as a result of an allegation of serious misconduct; On 25 June 2014, she was dismissed from her employment; She was singled out, excessively monitored, micromanaged and treated differently to other academics; On 14 November 2013, Professor Birbilis failed to renew half of the scholarship of her research student without justifiable reasons; On 1 April 2014, Professor Birbilis demanded that she immediately return her e-cab card without justifiable reasons for the urgency; On 7 May 2014, Professor Birbilis asked the publisher of her text book to abandon publication; When her employment was terminated, she was paid four weeks in lieu of notice when s 117(3) of the Fair Work Act 2009 (Cth) (the FWA) required five weeks notice; Ms Cornish, the Provost of Monash University, who terminated her employment, had no authority to do so. That power lay with the Faculty Dean and the Vice Chancellor; and Monash University terminated her employment because she made a complaint under the Sex Discrimination Act 1984 (Cth) (the SDA). The remedy sought by Ms Chen is reinstatement. 3 The originating application specifies that the claims of unlawful conduct are made under s 94(2) of the SDA and ss 340 - 342, and 351 of the FWA.

THE SUBMISSIONS 4 On 4 April 2016, the Monash parties filed written submissions in support of the interlocutory application together with an affidavit affirmed on 1 February 2016 by Georgina Taylor, a solicitor for the Monash parties. 5 On 9 May 2016, Ms Chen filed a written submission in reply opposing the order sought by the Monash parties in the interlocutory application. 6 Ms Chen is not in Australia and the parties agreed that the Court should determine the interlocutory application on the basis of the written submissions without any oral hearing.

THE SDA CLAIM 7 Section 94(1) and (2)(a) of the SDA provide: (1) A person shall not commit an act of victimization against another person. Penalty: (a) in the case of a natural person - 25 penalty units or imprisonment for 3 months, or both; or (b) in the case of a body corporate - 100 penalty units. (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; 8 Although the originating application lacks a logical progression and arguably contains matters irrelevant to the statutory claims, it can be taken that Ms Chen alleges that the Monash parties committed acts of victimisation against her by subjecting her to detriment because she made a complaint under the SDA or under the AHRC Act. On November 2015, the final amended form of Ms Chen's complaint to the AHRC was terminated on the ground that the allegations contained in it were either lacking in substance or had previously been adequately dealt with by the AHRC pursuant to ss 46PH(1)(c) and (1)(f) of the Australian Human Rights Commission Act 1986 (Cth). 9 The Monash parties argue that the s 94 claim is beyond the jurisdiction of the Court. 10 In a recent judgment of the Full Court, Chen v Monash University [2016] FCAFC 66, an appeal brought by Ms Chen, the issue was dealt with directly as follows: 120. Relevant to this ground of appeal are the following provisions of the SD Act: (1) section 94 which provides: (a) that a person shall not commit an act of victimisation against another person and sets out a penalty for breach of the subsection which includes the imposing of a fine by reference to penalty units and, for a natural person, imprisonment: s 94(1); (b) when a person shall be taken to have committed an act of victimisation: s 94(2); and (c) for a defence to a prosecution for an offence under s 94(1): s 94(3); and (2) section 13A of the SD Act which provides that Chapter 2 of the Criminal Code applies to all offences against the SD Act. 121 Section 49B of the AHRC Act confers on this Court and the Federal Circuit Court of Australia (Federal Circuit Court) concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC and, in conferring jurisdiction on this Court in relation to any matter arising under any laws made by the Commonwealth Parliament, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) expressly excludes "a matter in respect of which a criminal prosecution is instituted or any other criminal matter". While a claim of victimisation can be made to the AHRC it seems that it cannot, based on the operation of these sections, be made to this Court. 122 In Walker v State of Victoria [2012] FCAFC 38 (Walker v State of Victoria) a Full Court considered whether this Court had jurisdiction to hear a claim for victimisation arising out of an alleged breach of s 42 of the Disability Discrimination Act 1992 (Cth) which creates a criminal offence in an analogous way to s 94 of the SD Act. After setting out the relevant sections Gray J (with whom Reeves J agreed) said at [99]: It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37]-[41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether 'conduct that is an offence' under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court. 123 The primary judge addressed this issue at [10] to [11] of his judgment. In doing so he observed that the applicant accepted the Court could not entertain claims of victimisation because the Court has no jurisdiction to deal with a claim that creates a criminal offence. At the election of the applicant and, without opposition from the respondents, the allegations that would otherwise have made up the applicant's claim of victimisation were dealt with as sex discrimination claims which formed part of a course of conduct on the part of the first respondent. There is no appealable error in the approach of the primary judge to this issue. He properly found that there was no jurisdiction in this Court to hear a claim which amounts to a criminal offence and made reference to the authority that was binding on him: Walker v State of Victoria. The applicant was permitted to lead evidence in relation to the matters that she said amounted to victimisation as part of her sex discrimination claims. 124 The applicant relies on Alexander v Cappello, a decision of Judge Driver in the Federal Circuit Court, in which Judge Driver made a finding that a claim of victimisation pursuant to s 94 of the SD Act had been established. Although Judge Driver refers to the judgment of Gray J in Walker v Victoria, he did not consider the issue of whether the Federal Circuit Court had jurisdiction to consider a claim for victimisation pursuant to s 94 of the SD Act. We assume the issue was not raised and his attention was not drawn to the relevant remarks of Gray J on that issue in Walker v Victoria. In any event, Alexander v Cappello was not binding on the primary judge and, if it was brought to his attention, he properly did not follow it. 11 That judgment, and the Full Court judgment in Walker v State of Victoria [2012] FCAFC 38, are binding on me sitting as a single judge. Those judgments make it plain that the claim under s 94 is not within the jurisdiction of the Court.

THE FWA CLAIMS 12 From the originating application it can be taken that Ms Chen alleges that the Monash parties dismissed her because of her sex and thereby contravened the prohibition contained in s 351(1) of the FWA. 13 According to the affidavit of Ms Taylor, on 17 January 2015, Ms Chen filed a general protections application in the Fair Work Commission arising out of her dismissal. That application was discontinued on 23 January 2015. On the same day Ms Chen filed a further general protections application relating to her dismissal in the Fair Work Commission. She discontinued that application on 4 February 2015. 14 Ms Chen was entitled to apply to the Fair Work Commission under s 365 of the FWA to deal with the dispute over her dismissal. Section 368(3)(a) of the FWA provides: (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; 15 The Fair Work Commission did not issue a certificate in respect of either of the proceedings brought, and discontinued, by Ms Chen. 16 The application to the Court for reinstatement, which Ms Chen seeks, following the alleged contravention of s 351(1) of the FWA, is a general protections court application pursuant to s 368(4) of the FWA. 17 Section 370 of the FWA provides: A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute; (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; [Emphasis added] 18 The Fair Work Commission did not issue any certificate under s 368(3)(a) of the FWA. Consequently, by operation of s 370(a)(i), Ms Chen is not entitled to make the application under ss 340-342 and 351 of the FWA to this Court.

CONCLUSION 19 It follows from these reasons that Ms Chen has no reasonable prospect of successfully prosecuting the proceeding within the terms of s 31A of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules. 20 The proceeding is dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.