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[2010] FCA 1409
Federal Court of Australia
2010-12-16
Mr P, McKerracher J, Besanko J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant made a claim under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now under the Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act')) against six respondents. She pleads various causes of action. Those causes of action include unlawful discrimination by reason of victimisation under s 94 of the Sex Discrimination Act 1984 (Cth) ('SD Act'), unlawful discrimination by reason of sexual harassment under s 28B of the SD Act and unlawful discrimination in employment under s 14(2) of the SD Act. The applicant also relies on a common law cause of action. She alleges that there was an implied term in her contract of employment with the first respondent that the first respondent would maintain trust and confidence with the applicant and that the first respondent has breached that term. 2 At the outset, the applicant filed a detailed Claim in support of her case against the respondents pursuant to Order 81. On 21 May 2010, both parties appeared before me and agreed that it would be appropriate to make an order for the filing of a statement of claim. I made an order that the applicant file and serve a statement of claim within 28 days. 3 The order meant that the applicant's claim was a pleading. The distinction between the requirements for a proper pleading and the requirements for a proper particularisation of a claim under Order 81 have been considered in the authorities (see, for example, Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 at [42] per McKerracher J). Nothing turns on the distinction in this case because the deficiencies I will identify are deficiencies under either test. 4 The applicant's Statement of Claim has undergone a number of changes. At one stage senior counsel for the applicant and senior counsel for the respondents conferred with a view to seeing if the differences between the parties could be resolved. 5 Not all of the differences could be resolved and the applicant issued a notice of motion seeking leave to file and serve what she described as a Further Amended Claim. It is that motion which is the subject of these reasons. 6 The process of amending the Statement of Claim continued at the hearing of the motion and shortly thereafter. The proposed Statement of Claim which was the subject of argument on 12 October 2010 is a document handed to the Court on the afternoon of that day. There were some proposed further amendments to that document and a proposed Statement of Claim was received in the Court Registry on 14 October 2010. These reasons relate to that document. I have had regard to the submissions made on 12 October 2010 and the further submissions filed by the respondent (on 20 October 2010) and the applicant on 22 October 2010.
The claims against the second and third respondents for victimisation under s 94 of the SD Act 7 Section 94 of the SD Act provides that a person shall not commit an act of victimisation against another person and contravention of the section is a criminal offence. Subsection (2) provides that a person shall be taken to commit an act of victimisation 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 has done one or more of a number of things. For present purposes it will be sufficient if I describe two of those matters, being, first, if the other person has made or proposes to make a complaint under the SD Act or the AHRC Act and, secondly, if the other person has brought or proposes to bring proceedings under this Act or the AHRC Act against any person. Subsection 94(3) provides for a defence to a prosecution for an offence under subsection (1). 8 The pleas of victimisation under s 94 are contained in paragraphs 99 to 108 inclusive of the proposed Statement of Claim. Two complaints are made about the pleas in those paragraphs. First, it is said that there is no plea of motive or purpose as required by s 94(2). That complaint is well founded. It is an element of the act of victimisation that the respondent takes the action identified for one of the reasons or purposes identified in subsection (2). 9 Secondly, the third respondent contends that the claim against her is untenable. She contends that the only act alleged against her is that on 10 February 2010 at 11.45 pm she attempted to make a telephone call to the applicant. The applicant did not answer the call. For her part the applicant alleges that the third respondent subjected her to a detriment "in the nature of an exacerbation of the psychiatric condition asserted in paragraph 90 hereof consequent upon the perceived threat to her family's safety and intimidation". 10 I think the third respondent is correct when she submits that the question of detriment must be determined objectively (Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [236]). On the face of it, it is difficult to see that one unanswered telephone call, albeit late at night, constitutes a detriment within subsection 94(2). However, I do not propose to decide the third respondent's submission at this stage. I will consider the submission once the pleadings related to victimisation contain an appropriate plea of motive or purpose.
The pleas relating to the alleged unlawful acts, omissions or practices 11 The pleas which identify the various causes of action against particular respondents are contained in paragraphs 84 to 98 inclusive of the proposed Statement of Claim. 12 In my opinion, there remains a difficulty with the pleas in paragraphs 91, 92 and 93. Those paragraphs are in the following terms: 91. The said conduct pleaded in paragraphs 84 and 85 resulted in the First Respondent arriving at a determination on or about 26 August 2009 to dismiss the Applicant. Whether by conduct as pleaded hereunder in paragraph 98 the First Respondent did constructively dismiss the Applicant at some time prior to 19 November 2009 or alternatively whether the First Respondent terminated the Applicant's employment as pleaded in paragraph 83 hereof the First Respondent did unlawfully discriminate against the Applicant by reason of her sex contrary to s. 14(2) of the SDA. Such breach of s. 14(2) of the SDA constitutes an act unlawful pursuant to Part II of the SDA and is in the event unlawful discrimination pursuant to s. 5 of the AHRCA. Such breach is compensable pursuant to s. 46PO(4)(d) of the AHRCA. 92. Further and additionally the said conduct pleaded in paragraphs 84 and 85 constituted treatment of the Appellant which was less favourable treatment than the First Respondent would have treated a male person engaged as or holding an equivalent position to that held by the Applicant in the First Respondent and for that reason also constituted a breach of s. 14(2) of the SDA and as such unlawful discrimination and compensable. 93. The act of unlawful discrimination pleaded in paragraph 91 or 92 hereof caused the Applicant hurt, distress and humiliation and materially contributed to the development of a psychiatric condition in the nature of depression and post traumatic stress disorder which has rendered the Applicant incapacitated for work. Alternatively, the loss of the Applicant's employment has resulted in her being unable to work and has impacted upon her capacity to engage in employment and to thereby earn remuneration and commission and has prevented her from advancing in the industry in which she was employed causing her to suffer economic loss as particularised in Attachment 2 hereto. 13 Paragraphs 84 and 85 identify conduct by the second respondent which is said to constitute sexual harassment. 14 Paragraph 91 does not make clear how it is alleged by the applicant that the second respondent's alleged sexual harassment resulted in the first respondent arriving at a determination to dismiss the applicant. 15 Paragraph 92 does not make clear which paragraph in s 14(2) is relied upon by the applicant. It is reasonable to infer that with respect to paragraph 91 the applicant relies on s 14(2)(c). It needs to be made clear in paragraph 92, which paragraph in s 14(2) the applicant relies upon. 16 I reject the respondent's complaint concerning paragraph 98.
The second respondent engaging in the conduct pleaded 17 In paragraph 84 the applicant alleges: The Applicant says that the Second Respondent by engaging in the conduct pleaded in paragraphs 10 to 19, 23 to 39, 43 to 45, 51, 52, 54 to 59, 61 and 70 set about or sought to engage in sexual relations with the Applicant. The Applicant further asserts that such conduct constituted sexual harassment as an unwelcome sexual advance or advances by the second respondent contrary to s 28A(1)(a) and s 28B(2) of the Sex Discrimination Act 1984 (Cth) ("the SDA"). 18 The second respondent complains that this plea is deficient because a number of the paragraphs to which it refers do not plead any conduct by the second respondent. The examples given by the second respondent during submissions were paragraphs 15, 16, 17 and 19. I think that complaint is well founded. Paragraphs 15 and 16 make no allegation of conduct on the part of the second respondent and paragraphs 17 and 19 do so but only in an indirect fashion.
Miscellaneous complaints 19 Paragraphs 17 and 19 are deficient in that they do not clearly identify the circumstances in which the applicant was told not to disclose her whereabouts or made to lie about her whereabouts. There should be a clear link to such an allegation whether it be the allegation in paragraph 10 or the allegation in paragraph 13. The applicant submits that it is the allegation in paragraph 10. It seems to me that should be made clear in the pleading. Otherwise, I think that the respondents can plead to the paragraphs. I reject the respondents' challenge to paragraph 20. I agree that the pleading is awkward but I think that the respondents are able to plead to it. 20 I reject the challenge to paragraph 27.3. I think the respondents are able to plead to it. 21 Paragraph 38.5 is in the following terms: On Friday 3 April 2009 the Applicant flew to Melbourne with her family to celebrate her twin boys 8th birthday. The Second Respondent telephoned the Applicant on Sunday 5 April 2009 to inform her that he will be in Melbourne and instructed her to extend her trip to join him at the meeting to discuss a property situated at Laverton, Melbourne ("the Laverton property"). In respect thereof: … 38.5 The Applicant refused the Second Respondent's advances to stay in the same hotel as the Second Respondent and instead stayed the extra day with her relatives, [names of relatives]. The Second Respondent became very angry towards the Applicant for not staying with him. 22 I think the second respondent's challenge to this paragraph is well founded. I think the applicant should specify what advances were made by the second respondent and when. 23 Paragraph 38.7 provides: 38.7 The Second Respondent put pressure on the Applicant to invest $300,000 into the Laverton Property or to use her matrimonial property as security. The Applicant refused to do this and the Second Respondent became angry towards the Applicant. 24 I think the second respondent's complaint about this paragraph is well founded. The applicant should specify what she means by the plea that the second respondent put pressure on her to do the matter alleged. 25 The respondents complain of paragraphs 68 and 69 of the proposed Statement of Claim. The applicant accepts that there is "some uncertainty here". The date upon which the events alleged in paragraph 68 occurred should be made clear and the amendments suggested by the applicant should be made to paragraph 69.
Conclusion 26 In light of my conclusions, the appropriate order is that the applicant's notice of motion be adjourned. It can be re-activated in relation to a Statement of Claim which addresses the deficiencies identified in these reasons. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Georgiou
Spencer Holdings Pty Ltd