Gauci v Kennedy

BACKGROUND 9 The judgment of Jarrett FM arose from an application filed on 1 November 2004 by the second respondent pursuant to r 13.10 FMCR. In that application the second respondent sought an order that the proceedings commenced against it by the applicant be summarily dismissed, or alternatively stayed. 10 The claim of the applicant against the second respondent was described by Jarrett FM as (par 6):

1. the second respondent had discriminated against the applicant, in breach of the SD Act, by reason of the way in which it dealt with certain complaints of sexual harassment made by him against the first respondent and the first respondent against him;

the second respondent was vicariously liable for certain alleged breaches of the SD Act by the first respondent; and

the second respondent failed in its duty toward him to properly train him in dealing with complaints of sexual harassment.

11 The facts forming the basis of the substantive application were set out in detail in the reasons for the decision of Jarrett FM. For the purposes of the application before him, Jarrett FM accepted all that the applicant alleged as matters of fact, including material appended to affidavits filed by the applicant (par 12). Those facts as accepted by Jarrett FM can be summarised as follows:

1. the applicant was employed by the second respondent as the First-Year Tutorial Coordinator in the School of Psychology

2. the first respondent was a social work student at the University and had contact with the applicant

3. the applicant alleged that in 2003 the first respondent commenced part-time tutoring and became an employee of the second respondent

the applicant claimed the first respondent showed untoward interest in him in 2002, including:

· she told the applicant 'You have really nice eyes'

· she invited him for coffee at the end of 2002 to 'say thanks for all the help I'd given her that year'. Nothing of any significance happened at that meeting

the first respondent attempted to contact the applicant while he was on extended leave at the commencement of the 2003 calendar year to discuss her part-time tutoring position, and a meeting was eventually arranged. At that meeting, the first respondent asked the applicant if they could be friends, and chat sometimes

some emails passed between the applicant and the first respondent, and in early May 2003 the first respondent insisted that they have lunch. At the lunch the first respondent hinted that they might see a film together. After the lunch the first respondent followed the applicant back to the psychology building and asked him if he wanted to 'go get a tattoo with her'. The applicant declined the offer. The first respondent then asked the applicant to see a film with her, and he said he agreed because he was so taken aback by her question concerning the tattoo, and her persistence

the applicant emailed the first respondent, and explained that he did not think it was a good idea to see a movie, that he did not feel good about seeing a movie with her, that although he thought that she was probably a nice person they could not be friends, and requested her not to persist

the first respondent responded by email as follows:

'Hi Peter What's your problem? In my honest opinion I just think you are scared of actually getting to know someone (especially someone who is actually intelligent). I want you to outline for me all the reasons why you don't want to get to know me - the ones below are not sufficient. In saying that you've given it a fair go, well you haven't. Maybe you feel uncomfortable with me because of your own insecurities, but really it's unfair on me (I can't help it if you are grappling with issues). I'm not asking a lot of you. If I wanted to "jump you" I would have done it a lot sooner than this. I honestly do not see why you are doing this (and I'm actually quite upset). As for persisting, well I'm not one to go down without a fight. If I wanted to make your life hell I could, but as far as things go currently, I need you to explain it in intricate detail. Please respond to this.' 'Just remembered another thing to say - in order to "dump me off" like this you need to do it face to face sending an email is a cowardly way of doing it. For once in your life stand up and be a man - face your responsibilities. Oh and by the way - I'm not a student doing psychology (maybe you've forgotten that) so please refrain from using that as an excuse because it's not going to stick.'

the applicant responded by email to the first respondent asking her, inter alia, not to persist, informing her that he found her conduct sufficiently unusual to commence a file in relation to her with the deputy head in Psychology, indicating that she had no reason to contact him professionally, and stating that he would consider it harassment if she contacted him again

the applicant circulated his email to Dr Judy Bowey, who I understand at that time was deputy head in Psychology at the university, a sexual harassment officer, and the applicant's supervisor

it appears that the first respondent lodged an informal complaint with the second respondent concerning the applicant, which complaint was initially handled by Dr Bowey and Ms Luisa Nocella. The applicant alleged that his response (that he had been harassed) was dismissed out of hand, and he was instructed to write a letter of apology to the first respondent without being informed of what he had been accused. The applicant wrote a letter, apologising for any hurt he may have caused the first respondent

the applicant met with Dr Bowey on 9 May 2003, and informed her that he was homosexual

on 20 May 2003 the first respondent formally complained to the second respondent that the applicant had sexually harassed her at four meetings

shortly thereafter, the applicant formally complained to the second respondent that the first respondent had sexually harassed him

on 26 May 2003 the applicant lodged a complaint of sexual harassment against the first respondent with the Anti-Discrimination Commission Queensland

meanwhile, the complaints of both the applicant and the first respondent were referred to the Deputy Vice-Chancellor (Academic) within the second respondent's Management of Sexual Harassment Policy. Investigation of the complaints were referred by the Deputy Vice-Chancellor (Academic) to a delegate

on 16 June 2003 the Anti-Discrimination Commission Queensland declined to accept the applicant's complaint

on 23 June 2003 the applicant made a complaint to the Human Rights and Equal Opportunity Commission ('HREOC'), directed at the first respondent and the Deputy Vice-Chancellor (Academic) of the university. The applicant marked the complaint as a sexual harassment complaint. As noted by the learned Federal Magistrate, the applicant's complaint to HREOC contained the following statement:

'I have several complaints about the University's handling of the situation. First, the initial handling of the situation was appalling. I can believe that Ms Kennedy put on a good show for Luisa Nocella and Luisa's attitude towards me reflected a genuine belief I had done something wrong. From my own experience, I just don't think Judy Bowey reacts well in a crisis. I also take issue with the fact that the University a) failed to identify what was happening to me as sexual harassment; b) refused to treat it as such when I suggested that and c) attempted to badger me into mediation. I particularly think the repeated pressure to make me go to mediation constitutes a breach under s 105 of the Sex Discrimination Act. I had explicitly stated that I believe Ms Kennedy would only abuse mediation, using it as an opportunity to further harass me.'

the first respondent withdrew her formal complaint against the applicant within the second respondent's guidelines before a formal report was delivered. The applicant's formal complaint was not withdrawn. The delegate investigating the complaint rejected it on the basis that:

· the essence of his complaint was that the first respondent's complaint against him was sexually harassing of him because it was false and without substance, however

· the lodging of a complaint against him was not capable of constituting sexual harassment of him in the relevant sense

the applicant was dissatisfied with the findings of the second respondent concerning his complaint

the applicant resigned from his position with the second respondent on 5 September 2003

HREOC terminated the applicant's complaint on 22 June 2004 on the basis that:

· the lodging of a complaint by the first respondent was not sexual harassment in the relevant sense, and

· in relation to the balance of her conduct prior to the lodging of her complaint with the second respondent - there was no reasonable prospect of it being settled by conciliation.

DECISION OF JARRETT FM 12 In terms of discrimination Jarrett FM described the gravamen of the applicant's claim against the second respondent as follows: '…that (the second respondent) accepted the first respondent's complaint, but rejected his on "a number of specious grounds including their belief that I, a gay man, welcomed Ms Kennedy's sexual attention". He complains that Ms Bowey and Ms Nocella continued to deal with the first respondent's claims "despite their possession of considerable evidence to the effect that her complaint was vexatious". [47] He says that the second respondent failed to recognise that the first respondent's complaint was vexatious and harassing of him and that it was wrong to conclude that his complaint of her could be seen as he victimising Ms Kennedy. [48]' 13 Before his Honour, the second respondent submitted that no reasonable cause of action was raised in the applicant's material, that no breach of the SD Act could possibly be made out on the evidence, and that it had no vicarious liability for any acts of the first respondent. 14 His Honour examined ss 5, 14, 28A, 94, 105 and 106 SD Act, and s 46PO(3) HREOC Act. 15 His Honour was not satisfied that he should dismiss the applicant's claim of unlawful discrimination against the second respondent. 16 However, having regard to the applicant's claim under s 28A SD Act, his Honour was of the view that no facts alleged by the applicant could amount to any sexual harassment of the applicant by or on behalf of the second respondent or any of its agents or employees. His Honour said that there was nothing in the facts alleged by the applicant that could possibly amount to an unwelcome sexual advance or unwelcome request for sexual favours from any of the agents or employees, or unwelcome conduct of a sexual nature towards the applicant from them (par 65). 17 His Honour also found that asking the applicant to read the first respondent's complaint of sexual harassment against him, or failing to dismiss the first respondent's complaint summarily without calling for his response, were not sexual harassment of the applicant (par 66). 18 Finally, his Honour rejected the claim of the applicant that the first respondent had sexually harassed him, and, because she was an employee of the second respondent at the relevant time, the second respondent was vicariously liable for that harassment. Reasons for this finding were: · even assuming that the first respondent was the employee of the second respondent at material times, no facts had been alleged that would or could amount to sexual harassment by the first respondent of the applicant. Although the first respondent had invited the applicant to coffee on two occasions, pizza on one occasion and a movie on a fourth occasion, there was no claim that the first respondent had subjected the applicant to an unwelcome sexual advance or made to him an unwelcome request for sexual favours (pars 68-69)

· the making of a complaint of sexual harassment against the applicant to the second respondent did not in these circumstances amount to sexual harassment for the purposes of the SD Act (par 70)

· while it was possible that the actions of the first respondent had constituted harassment, it was not sexual harassment in breach of the SD Act (par 70).

19 Accordingly, his Honour dismissed the applicant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the SD Act. Part II Div 3 of the SD Act deals with, and prohibits, sexual harassment as defined and contemplated by that Part.

PRINCIPLES APPLICABLE TO EXTENDING TIME FOR FILING OF NOTICES OF APPEAL 20 As I have already noted, the applicant filed an application for an extension of time and a notice of appeal after the expiration of the time limits set for such appeals in the Federal Court Rules. Clearly it is important that parties observe time limits set by the Rules, however a discretion is vested in the Court by O 52 r 15(2) to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing (Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. In considering the meaning of the words 'special reasons' in this context, the Full Court of the Federal Court in Jess v Scott (1986) 70 ALR 185 observed that the facts of a case may be such as to justify the exercise of the Court's discretion: '…wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (at 193) 21 There are a number of guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2): 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time

2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished

3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension

4. however, the mere absence of prejudice is not enough to justify the grant of an extension

5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

(Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, adopted by the Full Court in Parker v The Queen at pars 6-7)

EXPLANATION FOR THE DELAY IN FILING NOTICE OF APPEAL 22 In his outline of submissions, the applicant stated, inter alia: · he attempted to submit his notice of appeal on 24 October 2005, but the notice lacked required formatting

· he was unemployed and could not afford to travel to the Court to file the notice for some time

· he attempted to file the notice again on 30 November 2005 but was told he needed to file the notice under a new number

· he spoke with a Registrar in mid-December 2005 to seek assistance

· he had difficulty understanding the decision of Jarrett FM

23 The second respondent in its outline of submissions stated, inter alia: · the applicant was aware of time limits applicable in court as he had been late filing his application in the Federal Magistrates Court and required leave to do so out of time

· although the applicant claimed he could not afford to travel to the Court before 30 November 2005, he filed a number of subpoenas on 3 November 2005

· notwithstanding the applicant's illness, the applicant stated that he telephoned the Court Registry on or about 17 December 2005 and was told he would have to appeal to the Federal Court using forms available on the internet

· there was no explanation for the delay between the end of December 2005 and the filing for leave on 14 February 2006, which period totals 45 days.

24 In my view the reasons given by the applicant for his delay in filing the notice of appeal are barely adequate. It seemed that, notwithstanding his explanation for the delay in filing the notice of appeal, he was able to undertake other actions related to his claim. Further, his explanation does not account for the entire period of the delay.

FAIR AND EQUITABLE IN THE CIRCUMSTANCES 25 The applicant has not dealt with this issue in his submissions, however the second respondent has submitted that the applicant has not been denied opportunities to ventilate his complaints. Venues of complaint include the university's internal procedures, the Anti-Discrimination Commission Queensland, HREOC, the Federal Magistrates Court and the Federal Court. The second respondent submitted that equity and fairness do not oblige the Court to subject it to another hearing on the same issues of the validity of the applicant's claims which have been dismissed. 26 I note the point raised by the second respondent, however I also note that the applicant is entitled to exercise his rights of appeal where applicable including seeking to appeal a decision of the Federal Magistrates Court adverse to him.

PREJUDICE 27 The second respondent claimed that, because of the delay in filing an appeal by the applicant, the second respondent has incurred the costs of further directions hearings on 24 October 2005, 6 December 2005 and 6 February 2006. It also claimed that the applicant is unlikely to be in a position to be able to meet any costs order arising from the costs thrown away by his delay. 28 The issue of prejudice in the context of cases involving an application for extension of time was recently discussed by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at par 16. His Honour referred to comments of Bray CJ in Lovett v Le Gall (1975) 10 SASR 479: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' (at 485) 29 There is no evidence before me as to the nature of any costs which have been thrown away by the second respondent as a result of the delay of the applicant. While it is not desirable to incur costs in relation to directions hearings, it is difficult to ascertain how the second respondent has been disadvantaged in being required to attend them other than in relation to the incurring of associated costs, and general inconvenience connected with ongoing litigation. It seems from its submissions that the second respondent was aware that the applicant was continuing to pursue his claim notwithstanding the judgment of Jarrett FM. 30 In my view, although the second respondent may have experienced some prejudice as a result of the delay, it was not substantial.

MERIT 31 The decision from which the applicant sought an extension of time to appeal was an order for summary dismissal by the learned Federal Magistrate, pursuant to r 13.10 FMCR, of a limited aspect of the applicant's claim against the second respondent. As I have already noted, that aspect of the claim was for sexual harassment. At the relevant time, r 13.10 FMCR was as follows: 'Disposal by summary dismissal The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or (b)the proceeding or claim for relief is frivolous or vexatious; or (c)the proceeding or claim for relief is an abuse of the process of the Court.' 32 The power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases. As Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91: 'The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' 33 Further, Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 opined that great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. 34 These principles represent settled law in this country. Reference was made to them recently by Kirby J in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [157]-[161]. 35 I have already referred to the reasons given by the learned Federal Magistrate for his decision. They may be summarised as: · no facts alleged by the applicant could amount to any sexual harassment of the applicant by or on behalf of the second respondent or any of its agents or employees

· asking the applicant to read the first respondent's complaint of sexual harassment against him, or by failing to dismiss the first respondent's complaint summarily without calling for his response, were not sexual harassment of the applicant

· even assuming that the first respondent was the employee of the second respondent at material times, no facts had been alleged that would or could amount to sexual harassment by the first respondent of the applicant.

36 In this case before me, I have reservations concerning the finding of Jarrett FM, in relation to the potential vicarious liability of the second respondent for the actions of the first respondent, that the claim against the second respondent did not disclose a reasonable cause of action because no facts were alleged by the applicant that would or could amount to sexual harassment of the applicant by the first respondent. 'Sexual harassment' is defined by s 28A SD Act as follows:

'(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 37 Vicarious liability of employers for conduct of their employees in breach of Pt II Div 3 of the SD Act is contemplated by s 106, which provides as follows: '(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph. 38 There is clearly a wealth of authority in the courts interpreting sexual harassment, and vicarious liability of employers for conduct of employees breaching the SD Act. A recent case where relevant issues were discussed is Ingram-Nader. 39 It is in my view at least arguable - as claimed by the applicant - that the conduct of the first respondent towards him as described in the decision of Jarrett FM and outlined earlier in this judgment, did amount to sexual harassment in the sense of being unwelcome conduct of a sexual nature in relation to the applicant. In this case, I note in particular the invitations of the first respondent, the nature of those invitations, the persistence of the first respondent, and the correspondence from the first respondent to the applicant. 40 Determination of whether the first respondent had sexually harassed the applicant would have clear implications for the applicant's claim against the second respondent. 41 The applicant stated in his submissions before me that he had never intended to allege that he had been sexually harassed by employees of the second respondent, other than the first respondent. However if the actions of the first respondent did constitute sexual harassment, then two issues arise regarding the second respondent's vicarious liability for breaches of Pt II Div 3 SD Act about which submissions have been put to me. 42 First, the applicant alleges that the first respondent was an employee of the second respondent at relevant times and that the second respondent was therefore vicariously liable for her actions. In its outline of submissions in this matter before me, the second respondent stated that there did not appear to be any evidence that the first respondent was an employee of the University at the relevant time. This is clearly a key issue, to be determined in a substantive hearing of this matter. 43 Second, the applicant's submissions in relation to the failure of the second respondent to deal appropriately with his complaints arguably raise issues concerning the reasonableness of steps taken by the second respondent, which are relevant for the purposes of s 106(2) SD Act. 44 In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6]), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27]), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21]). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.

CONCLUSION 45 Taking into account issues of delay, fairness and equity to the parties, prejudice to the respondents and the merits of the case, on balance it is my view that I should grant the applicant an extension of time to lodge an appeal. 46 However, I noted earlier in this judgment that leave to appeal from the interlocutory judgment of Jarrett FM had not been sought by the applicant pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth), and that it was necessary to do so in the circumstances. This application, and the submissions of the applicant and the respondents in this case, have been on the assumption that the sole issue in question was the extension of time for lodgment of a notice of appeal. In my view that assumption is not correct. 47 Applications for leave to appeal to the Court, like applications for an extension of time within which to institute an appeal to the Court, may be heard and determined by a single judge of this Court: s 25(2) Federal Court of Australia Act 1976 (Cth). Given the length of time which has passed since the decision of Jarrett FM in this case, it is clear that the statutory time limits for making application for leave to appeal have long expired and it would be necessary to obtain an order of the Court dispensing with the time limits (note O 52 r 5(2)(a) and r 5(3) Federal Court Rules, and comments of Lander J in Rana v University of South Australia (2004) FCA 559 par 3). 48 The principles applicable to grant of leave under s 24(1A) are reasonably well settled. The Full Court of the Federal Court in Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542 described the approach of the Court to such applications in the following terms: 'In accordance with the practice frequently adopted by the Court in applications for leave to appeal from interlocutory orders, we permitted counsel for both parties to address us, not only on that application, but on the grounds of appeal sought to be advanced, assuming, for the purposes of the argument, that leave to appeal had been granted. With the benefit of a full appellate argument, we come to the conclusion, for the reasons we give below, that in some respects but not in others, the judgment was attended by sufficient doubt to warrant it being reconsidered; and that, in those respects, substantial injustice would result if leave were to be refused. We propose to grant leave to appeal accordingly.' 49 The issues I have considered in the context of whether to allow the applicant an extension of time, particularly in relation to the merits of the case, are similar to the issues I would need to consider in an application for leave to appeal in this case. In my view, for the reasons I outlined earlier in this judgment in assessing the merit of the applicant's case, the decision of the learned Federal Magistrate to summarily dismiss the applicant's claim against the second respondent in respect of P II Div 3 SD Act is attended by sufficient doubt to warrant it being reconsidered. Accordingly, I am prepared to grant leave to the applicant to appeal the decision of Jarrett FM. THE COURT ORDERS THAT:

1. The application for leave to file and serve out of time a notice of appeal from the decision of Jarrett FM of 12 October 2005 is granted.

2. Leave to appeal from the decision of Jarrett FM of 12 October 2005 is granted.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent: Mr TJ Bradley

Solicitor for the Second Respondent: Brian Bartley & Associates

Date of Hearing: 18 April 2006