Gauci v Kennedy

[2006] FCA 869

Federal Court of Australia|2006-07-06|Before: Collier J

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Source facts

Court

Federal Court of Australia

Decision date

2006-07-06

Before

Collier J

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The application before me seeks an extension of time to file and serve out of time a notice of appeal from the decision of Jarrett FM made 12 October 2005 (Gauci v Kennedy & Anor [2005] FMCA 1505). In that decision the learned Federal Magistrate dismissed the applicant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) ('SD Act'). 2 As explained in the reasons for judgment of Jarrett FM, the substantive application filed by the applicant on 10 August 2004 sought orders from the Federal Magistrates Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act') that the respondents apologise to the applicant and pay him financial compensation in respect of alleged unlawful discrimination and sexual harassment. The application before me concerns only interlocutory relief obtained by the second respondent as a result of the orders made by Jarrett FM in his decision of 12 October 2005. 3 Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Court or the Federal Magistrates Court are found in O 52 r 15 Federal Court Rules. The rule provides: '(1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 4 In this case on 14 February 2006 the applicant filed a notice of appeal in addition to the application for leave to file and serve out of time. This was more than four months after the judgment of Jarrett FM was delivered. The applicant did not apply to the Court within 21 days of the judgment of Jarrett FM for an extension of time as permitted by O 52 r 15(2)(b). It follows that the applicant is required to seek the leave of this Court pursuant to O 52 r 15(2) to file and serve a notice of appeal. 5 However, a complication which has not been addressed by the parties in this case is that the decision of Jarrett FM pursuant to r 13.10 Federal Magistrates Court Rules 2001 ('FMCR') was an interlocutory judgment. His Honour noted himself in his reasons for decision that the application brought by the second respondent was interlocutory (par 3). Further, as pointed out by the High Court of Australia in In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6]: 'For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order.' 6 This principle represents the position in Australia: Luck at [8]. That decisions of Federal Magistrates pursuant to r 13.10 FMCR are interlocutory judgments is also beyond doubt, as pointed out by Lander J in Rana v University of South Australia [2004] FCA 559 at [6]-[15]. 7 Appeals from interlocutory judgments of the Federal Magistrates Court are not as of right. Leave of a Judge or the Court is required: s 24(1A) Federal Court of Australia Act 1976 (Cth). In the case before me however, the applicant has not sought leave to appeal from the decision of Jarrett FM. 8 I shall return to the issue of leave to appeal later in this judgment.

[35]

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)

[57]

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

[61]

'(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.

[62]

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:

Gauci v Kennedy

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