Hastwell v Kott Gunning

1. The respondent's interlocutory application dated and filed 19 September 2017 be dismissed.
2. The respondent pay the applicant's costs of and incidental to the interlocutory application, including costs thrown away by reason of granting the respondent's adjournment application on 19 September 2017, and the costs of the prior interlocutory application filed on 1 August 2017, on an indemnity basis.
3. The proceedings be listed for a case management hearing on 2 February 2018 at 12.00 noon Sydney time/9.00 am Perth time, or on such other date and time as is convenient to the Court and the parties.
4. The parties, by 48 hours prior to the case management hearing, email to the associate to Justice Bromwich agreed or competing procedural orders outlining the next steps in the proceeding, including the fixing of a trial date, and any orders for assessing the quantum of costs ordered to be paid above, with a view to such orders being made in chambers and the case management hearing on 2 February 2018 being vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 In May 2017, the applicant, Mr Haydn Gary Hastwell, commenced proceedings in this Court by way of an originating application that has since been amended. Mr Hastwell seeks relief under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in relation to allegations of prohibited discrimination on the basis of sexual orientation, disability and victimisation, in contravention of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth). In these reasons, references to section numbers and parts of section numbers are all references to provisions of the AHRC Act, unless stated otherwise. Independently of the s 46PO aspect of his case, Mr Hastwell also seeks declarations and damages for breach of contract, based upon the same alleged factual substratum. 2 These reasons concern an interlocutory dispute arising from an assertion made by the respondent, Kott Gunning, that this Court does not have jurisdiction to determine Mr Hastwell's proceedings in this Court. These proceedings are based upon a complaint to the Australian Human Rights Commission (HRC) that was terminated. 3 Kott Gunning is a law firm in Perth comprised of its equity partners. That partnership was the former employer of Mr Hastwell as a solicitor. The partnership changed composition during the period of Mr Hastwell's employment, and has changed further since he left that firm. Mr Hastwell's complaint to the HRC concerned the same allegations of prohibited discrimination on the basis of sexual orientation and victimisation that he now seeks to litigate in this Court. The conduct was alleged to have happened during the time that he was employed by Kott Gunning. 4 The conditions ordinarily precedent to commencing valid s 46PO proceedings in this Court include that a complaint to the HRC has been terminated: s 46PO(1), subject to subsection (3A). A properly constituted complaint to the HRC in the first place, and a match between a respondent to that complaint and each respondent to proceedings in this Court, is also required for valid proceedings in this Court: s 46PO(1). Proceedings in this Court are confined to the ambit of the complaint in the form in which it was terminated: s 46PO(3). In such proceedings, this Court is not bound by technicalities or legal forms: s 46PR. 5 Kott Gunning, by way of an interlocutory application, seeks summary dismissal of the entire proceedings. However, that application necessarily has to be confined to the s 46PO aspect of Mr Hastwell's claim. It cannot extend to summary dismissal of the contract claim, as that is not confined by the regime established by the AHRC Act. 6 Kott Gunning seeks summary dismissal of the s 46PO aspect of Mr Hastwell's proceedings by asserting that: (1) no valid complaint was made to the HRC; and (2) even if a valid complaint was made to the HRC, the required commonality between the respondent to the HRC complaint and the respondent to the proceedings in this Court is absent. 7 It is common ground that if either of the above related contentions is made good, the s 46PO aspect of these proceedings would be doomed. Summary judgment could not then be resisted by Mr Hastwell in respect of that part of his claim. However, for the reasons that follow, each contention made on this interlocutory application is devoid of merit. Kott Gunning's application for summary judgment must therefore be dismissed.