Ford v Inghams Enterprises Pty Ltd

1. The applicant have leave to file a Further Amended Statement of Claim in accordance with these reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This morning in Court, Counsel for the applicant applied for leave pursuant to rule 16.53 of the Federal Court Rules 2011 to file a Further Amended Statement of Claim (FASOC) in this proceeding. I note that today is the first day of a trial, listed for 15 days. In summary, the trial concerns serious and detailed complaints by Mr Ford of sexual harassment by other employees of the first respondent, Inghams Enterprises Pty Ltd (Inghams) of him during his employment at Ingham's chicken processing facility at Murrarie in Brisbane, and vicarious liability on the part of Inghams for that conduct of its employees. 2 In particular, the FASOC seeks to amend specific dates the subject of Mr Ford's complaints. The respondents do not oppose the filing of the FASOC except in respect of proposed pars 14(a) and (b) and [70]. These paragraphs read as follows: 14. From about August March April 2015, Rafferty and Waldock engaged in the following sexual harassment conduct, particulars of which are in the following paragraphs of this Statement of Claim: (a) initially, commencing in about March April 2015, it involved Rafferty and Waldock touching and patting and rubbing Mr Ford's buttocks, with this conduct occurring frequently and regularly during the remainder of the material time; (b) initially commencing from about April, two weeks after the first patting commenced incident, Rafferty and Waldock, individually and jointly, regularly performed genital sex acts on Mr Ford, those acts being commonly referred to in the workplace as "dry humping"; … … 70. In about February 2016 October 2015, at a picnic table near the security gate entrance at the premises, Phillips poked his finger into Mr Ford's anus (the "conduct"). Particulars (a) Mr Ford had come from the car park on the way to commence his shift. (b) He was at the picnic table organising his gear, namely, his work bag, motorbike helmet and jacket, before entering the gate. (c) As Mr Ford bent over the table, Phillips poked his finger up Mr Ford's anus. 3 The respondents do not submit that they would suffer prejudice from the amendment to the pleadings by the inclusion of these paragraphs. However, they submit that these amendments are outside the complaint made by Mr Ford to the Australian Human Rights Commission (the Commission). Section 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the Act) materially provides: (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. … (2) … (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. 4 In particular, the respondents point to the detail of Mr Ford's formal complaint to the Commission of 6 October 2016 found at Annexure A of that complaint. I specifically note paragraphs 5 and 6 which provide as follows: 5. Since I have been employed at Inghams I have witnessed inappropriate sexual behaviour towards a number of my fellow employees on numerous occasions. After approximately 6 months this behaviour was also directed towards me. 6. From around August 2015 until September 2016, I was sexually harassed and sexually assaulted by Rafferty, Waldock and Phillips (individually or collectively) on a daily basis. 5 They submit that proposed paragraphs 14(a) and (b) and 70 of the FASOC are not the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, and do not arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 6 The respondents also submit that: Evidence of events prior to August 2015 may be relevant to the narrative of events pleaded, and/or Mr Ford's credit; Evidence of events prior to August 2015 however cannot go to findings against the respondents; and Paragraphs 14(a) and (b) in the form proposed by the applicant could affect potential vicarious liability of the first respondent Inghams. 7 In support of his application to amend the statement of claim insofar as concerns pars 14(a) and (b) and par 70, Mr Reidy for the applicant submits, in summary: Paragraph 70 as proposed merely constitutes a correction to the pleadings, and is supported by Mr Ford's affidavit evidence. In the circumstances of this case the "start date" for the alleged conduct is of secondary consideration. It is the nature of the conduct which is critical. While there is some inconsistency between the "start dates" of the alleged conduct as between the complaint to the Commission and the proposed FASOC paragraphs, there is evidence that Mr Ford has been suffering a very serious mental illness, which would have an effect on his capacity to recall dates In circumstances where the respondents do not dispute the absence of prejudice to them from inclusion of these paragraphs, the only question is relevance. The material in paragraphs 14(a) and (b) and 70 is relevant to the culture of Inghams, and the narrative. Authorities such as Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 support the flexibility in permitting an amendment to Court pleadings notwithstanding inconsistencies with the complaint to the Commission. 8 I am prepared to grant leave to the applicant to file the FASOC tendered this morning with the inclusion of par 70. However I am not prepared to allow pars 14(a) and (b) in their current form. I have formed this view for the following reasons. 9 Insofar as concerns par 70, I note that the proposed correction to this paragraph reflects paragraph 229 of Mr Ford's affidavit dated 4 June 2018 which provides: 229. Having thought about the timing, I place this event in about February 2016 because it was before my holiday to New Zealand in the end of February 2016 and after I went to the Belmont Tavern with Waldock and Phillips in December 2015 or January 2016 10 The proposed form of par 70 simply corrects the timing of an event, which otherwise is alleged to occur within the period contemplated by Mr Ford's complaint to the Commission, namely August 2015 to September 2016. Not only is there no prejudice to the respondents from this proposal, it corrects an inaccuracy in the pleadings by what appears to be a minor amendment. Further, the allegation in par 70 continues to be the same in substance as the allegation the subject of the terminated complaint. It is of course open to the respondents to make submissions going to credit in relation to this correction of the pleadings and the temporal inconsistency with the date nominated in the Commission complaint. 11 However I am not satisfied that any "correction" proposed by pars 14(a) and (b) are in the same category. 12 The Full Court of the Federal Court in Dye clearly anticipated that there could be some flexibility in the pleadings of facts in the Court, compared with facts alleged in the complaint which had been before the Commission. In particular I note the following comments in relation to representative proceedings: 44. The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission. (emphasis added) 13 Their Honours continued: 46. Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court "should not be used to launch an application ... effectively bypassing the procedures provided by the legislation": Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act). 47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39]. 14 In this case while pars 14(a) and (b) appear to deal with allegations of conduct similar to those alleged in the Commission complaint, they are also prima facie inconsistent with the statement in Mr Ford's Commission complaint that it was after the first 6 months of his employment at Inghams (that is, after August 2015) that inappropriate sexual conduct commenced against him. The facts proposed to be pleaded in pars 14(a) and (b) do not appear to supplement the claims alleged in the Commission complaint - they are different in substance from those formerly alleged. 15 While evidence referable to alleged conduct prior to August 2015 appears to be relevant to the claimed culture of Inghams, and as background to the events the subject of Mr Ford's complaints, I am not satisfied that it warrants the amendment to the pleadings sought in pars 14(a) and (b) by Mr Ford. 16 I am prepared to grant the applicant leave to file a FASOC including par 70, but not pars 14(a) and (b) in its presently proposed terms. I will hear the applicant as to whether he seeks to further amend pars 14(a) and (b) in light of these reasons. I certify that the preceding sixteen (16) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.