Georgiou v Spencer Holdings Pty Ltd

REASONS FOR JUDGMENT 1 On 16 December 2010, I made an order that the applicant's notice of motion dated 8 August 2010 be adjourned to a date to be fixed. In that notice of motion, the applicant had sought leave to file and serve what she described as a Further Amended Claim. The respondents raised a number of objections to the Further Amended Claim. I considered the applicant's application with respect to a proposed Statement of Claim received in the Court Registry on 14 October 2010 and I delivered reasons with respect to the respondents' objections to that document on 16 December 2010: Georgiou v Spencer Holdings Pty Ltd [2010] FCA 1409. I upheld a number of the respondents' objections and considered that the appropriate order was that the applicant's notice of motion be adjourned. I said that it could be re-activated in relation to a Statement of Claim which addressed the deficiencies I had identified in my reasons. The applicant now puts forward a Statement of Claim which she submits addresses the deficiencies I identified ("the proposed Statement of Claim"). Subject to one matter, the respondents do not take issue with that contention. The one matter relates to the claim against the third respondent. 2 The third respondent contends that the claim against her is not maintainable in law. I set out what I said about her contention in my reasons delivered on 16 December 2010 at [9] and [10]. 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". 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. 3 The proposed Statement of Claim contains allegations of motive or purpose and as far as the third respondent is concerned is in the following terms: 105. On 10 February 2010 at 11.45pm the Applicant received another telephone call from the Second Respondent's telephone, being the same mobile telephone referred to in paragraph 102 above. 106. The person attempting to call the Applicant was the Third Respondent. The Applicant noted the caller by reason of the telephone number displayed and did not answer the telephone call, recalling in her mind the fear she felt in relation to the telephone call referred to in paragraph 102 above. 107. The Third Respondent thereby subjected the Applicant 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. 107A. The Third Respondent subjected the Applicant to such detriment referred to in paragraphs 105 to 107 inclusive because AHRC sought confirmation from the Respondents on 5 February 2010 of their availability to attend a conciliation conference for 10 March 2010. The Respondents having been made aware of the conciliation conference date acted on grounds or one of them identified in s.94(2)(a) and (b) of SDA. 4 "Detriment" is not defined in the Sex Discrimination Act 1984 (Cth). The detriment in the proposed Statement of Claim is said to be the making of the unanswered telephone call resulting in the exacerbation of the applicant's psychiatric condition. I have considered the case to which I was referred on the last occasion to Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [236] and I have also considered other cases, including Dye v Commonwealth Securities Ltd [2010] FCA 720; O'Callaghan v Loder [1983] 3 NSWLR 89 and Ministry of Defence v Jeremiah [1980] QB 87. I accept that detriment is broad enough to include disadvantage. At the same time, detriment is either the harm or the act which leads to the harm and in each case there is an objective requirement to be satisfied. It may be that the extent of any harm is to be wholly or partly determined as a subjective question - I do not need to decide that point - but there is a prior question to be determined objectively. That question is whether assessed objectively the making of an unanswered telephone call, albeit late at night, can constitute a detriment within s 94(2). While a number of unanswered telephone calls might constitute detriment, I do not think, assessing the matter objectively, that one unanswered telephone call can constitute detriment and, in my opinion, the claim in paragraphs 105 to 107A of the proposed Statement of Claim is untenable. There is no other claim made against the third respondent. 5 The claim against the third respondent must be dismissed. The applicant has leave to file the proposed Statement of Claim but without the allegations against the third respondent. I will hear the parties as to the appropriate orders. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.