Dawson v Catholic Education Office [2006] FMCA 381

I have before me a notice of motion by the respondent, the Catholic Education Office Archdiocese of Sydney, seeking the summary dismissal of the application by Ms Rosemary Dawson for relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"), under the Privacy Act 1988 (Cth) ("the Privacy Act") and also under the Trade Practices Act 1974 (Cth) ("the TPA"). The motion is opposed by Ms Dawson. The motion is supported by two affidavits by Gregory Donald McKay, the first filed on 9 November 2005 and the second filed on 8 March 2006. Mr McKay represented the respondent today by leave. He has a law degree but has not yet qualified for admission to practice.

Ms Dawson relies upon her notice of opposition to the respondent's motion, filed on 15 March 2006 and an affidavit filed on 24 February 2006. I also received as exhibits four documents relating to her complaints against the Catholic Education Office. I also have regard to both the original and amended applications to this Court filed by Ms Dawson and the information sheet and affidavit which accompanied the original application on 24 October 2005.

When these proceedings first came before me on 28 November 2005 Mr McKay appeared by leave by telephone and I adjourned the matter for further directions on 13 February 2006. On that day there was no appearance on behalf of the respondent and I made directions for the further conduct of the proceedings with the intention of conducting a hearing in August 2006. Subsequently, the present motion was filed.

I understand, on the basis of the material before me and the oral submissions that have been made, that the genesis of the dispute between the parties was a complaint of sexual harassment made by Ms Dawson against two of her colleagues at a Catholic school in Sutherland where she and her colleagues worked. That complaint was pursued by Ms Dawson before the New South Wales Anti-Discrimination Board and subsequently before the Equal Opportunity Division of the Administrative Decisions Tribunal of New South Wales. Because Ms Dawson has exercised her rights to pursue that complaint under New South Wales law, in my view, she would not now be able to pursue it under the Sex Discrimination Act 1984 (Cth) ("the SDA")and the HREOC Act by reason of the operation of s.0(4) of the SDA.

To the extent that Ms Dawson's application seeks to agitate an issue of discrimination there would, in any event, need to be a complaint which has been terminated by the President of HREOC pursuant to s.46PE or s.46PH of the HREOC Act. That has not occurred. The documents annexed to Ms Dawson's affidavit of 24 October 2005 include correspondence from HREOC to her dated 5 September 2002 and 25 September 2002. That correspondence makes clear that HREOC declined to accept a complaint of discrimination sought to be made by Ms Dawson. In those circumstances, this Court has no jurisdiction under s.46PO of the HREOC Act to entertain the application made by Ms Dawson.

Ms Dawson filed an amended application on 24 February 2006 in which she sought relief not only under the HREOC Act but also under the Privacy Act and the TPA. It is apparent from what is contained in the material submitted by Ms Dawson, and also what she has said to me from the bar table, that her concern relates principally to the termination of her employment by the Catholic Education Office. That issue has previously been the subject of industrial law proceedings in the New South Wales jurisdiction. I accept that Ms Dawson made a complaint of unfair dismissal which resulted in a payment to her of salary and also some form of deed which the respondent believes relieved it of any further liability. That was contested by Ms Dawson who commenced a second set of proceedings in the New South Wales Industrial Relations Commission. On 18 March 2004, Deputy President Grayson dismissed the second proceeding before the Commission. His decision bears the medium neutral citation of [2004] NSWIRCom 54. At paragraph 28 the Deputy President stated that the settlement of the first proceedings bearing matter number IRC 7022 of 2002 precluded the bringing of the second proceedings.

Insofar as the application before this Court relies upon the Privacy Act, the Court has no jurisdiction. The Court's jurisdiction under the Privacy Act is limited to the enforcement of a decision of the Privacy Commissioner or a code adjudicator. There was no evidence before me that such a decision has been made.

The amended application and the documents supporting it do not make clear what the allegation under the TPA is. Ms Dawson told me from the bar table that she relied upon ss.45D and 45E of the TPA. This Court lacks jurisdiction to deal with asserted breaches of Part IV of the TPA. When told of that, Ms Dawson sought a transfer of her application to the Federal Court. The oral application for transfer was opposed by the respondent. The Court has the power under s.39(3) of the Federal Magistrates Act 1999 (Cth) and rule 8.02 of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") to transfer proceedings to the Federal Court. Rule 8.02(2) provides that unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding. This is the third hearing that has been conducted in this matter. Rule 8.02(3) provides that unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit. The present transfer request was made orally. Those factors would not of themselves lead me to reject a transfer application if it was otherwise appropriate. Rule 8.02 details factors that the Court should take into account in considering a request for transfer. These include whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue. I see in this case no issue of general importance.

Secondly, a relevant consideration is whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred. In the present case, additional cost would be incurred as a result of a transfer. If the proceeding is not transferred, it would be terminated for want of jurisdiction. The only other consideration dealt with in the rules that I consider relevant is the wishes of parties. Ms Dawson seeks the transfer. The respondent opposes it. The application is not, in my view, in a state at present that could be properly dealt with by the Federal Court[1]. The allegations of breaches of the TPA would need to be properly pleaded. The application would need to be amended in order to delete the claims under the Privacy Act and the HREOC Act where the Federal Court's jurisdiction is no broader than the jurisdiction of this Court.

It is impossible for me to say, based on the material before me, whether a claim under the TPA would have any prospect of success. That is a matter which Ms Dawson should give consideration to before further seeking to agitate a claim under the TPA.

I have formed the view that the interests of justice would not be served by a transfer of these proceedings to the Federal Court. As I advised Ms Dawson, she can, if she wishes, institute fresh proceedings under the TPA in the Federal Court. Alternatively, if she is dissatisfied with the orders I will make today, she can seek leave to appeal to the Federal Court.

I find that I have no jurisdiction to further entertain Ms Dawson's application either under the HREOC Act, the Privacy Act or the TPA. In terms of the motion, I accept that no cause of action is disclosed within the jurisdiction of the Court. The application is doomed to fail and hence I will order that the application be summarily dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.

The respondent does not seek any costs order against Ms Dawson. To put the matter beyond any doubt, I will order that there be no order as to costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

[1] I did adjourn the matter briefly this morning with a view to consulting the List Judge of the Federal Court but was not able to make contact in the limited time available.