Kelly v Commonwealth of Australia as represented by Services Australia - [2023] FCA 69 - FCA 2023 case summary — Zoe

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Kelly v Commonwealth of Australia as represented by Services Australia

[2023] FCA 69

Federal Court of Australia|2023-02-08|Before: Farrell J

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Source facts

Court

Federal Court of Australia

Decision date

2023-02-08

Before

Farrell J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

INTRODUCTION 1 The first respondent (the Commonwealth of Australia, represented by Services Australia, formerly the Department of Human Services (DHS)) seeks orders under r 16.21(1) of the Federal Court Rules 2011 (Cth) (and in particular r 16.21(1)(d) and (e)) striking out paragraphs of an amended statement of claim accepted for filing on 5 November 2019 (ASOC). At the hearing of the strike out application, and without objection from the applicant, the Commonwealth also relied on the power of the Court to give summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth). 2 I understand these facts to be uncontentious: (a) The applicant (Mr Kelly) is a former employee of the Commonwealth. Mr Kelly commenced employment with the Commonwealth in 2006. He undertook various roles including social worker, social work support manager and in Centrelink Service Centre management in various service centres operated by the Commonwealth. In 2016, until about mid-August 2016, Mr Kelly worked at the Hurstville Service Centre (Hurstville Centre) on a full-time basis as a social worker. He was directed to work at the Rockdale Centre on 16 August 2016. On 27 September 2016, Mr Kelly ceased attending work and he never returned; (b) At relevant times, the second respondent (Ms Stone) was an employee of the Commonwealth who worked alongside Mr Kelly in an open plan office at the Hurstville Centre; (c) The third respondent (Mr Kowal) was an employee of the Commonwealth who supervised both Mr Kelly and Ms Stone; and (d) Mr Kelly's claims primarily (but not exclusively) relate to the conduct of Ms Stone, Mr Kowal and a person undertaking a course of study in social work at the University of Western Sydney (UWS) (Ivan). Ivan is not a party to the proceedings. 3 Put broadly, Mr Kelly claims to have suffered discrimination in contravention of the Sex Discrimination Act 1984 (Cth) (SD Act) and the Disability Discrimination Act 1992 (Cth) (DD Act) arising from the conduct of employees and an alleged employee of the Commonwealth and having regard to his same-sex orientation and disabilities. Mr Kelly says that his disabilities are a pre-existing attention deficit hyperactivity disorder (ADHD) and, as from about 27 July 2016, anxiety and/or chronic adjustment disorder and/or a major depressive disorder and/or post-traumatic stress disorder. Mr Kelly also claims that the Commonwealth contravened the Fair Work Act 2009 (Cth). 4 Mr Kelly lodged a complaint with the Australian Human Rights Commission (AHRC) on 7 November 2018. The documents lodged (including annexures) comprised 141 pages, which I will refer to as the AHRC pack. The Commonwealth responded to the complaint on 13 May 2019. The AHRC terminated the complaint on 10 July 2019. Mr Kelly commenced proceedings in this Court by filing an originating application and a statement of claim on 13 September 2019. I note that attached to the originating application was a copy of the AHRC's letter dated 10 July 2019 advising Mr Kelly that the complaint was terminated. It stated that attached were its reasons for the decision (described as Attachment A) and the complaint (described as Attachment B). The reasons for decision contain an endorsement "Attachment A". Attachment B comprises three documents: (a) A complaint form on AHRC letterhead comprising 7 pages. It is completed with answers to questions on the form, dated 7 November 2018 and signed by Michael Harmer of Harmers Workplace Lawyers. It is endorsed "Attachment B-1" in the same typeface as Attachment A; (b) A letter dated 7 November 2018 on the letterhead of Harmers Workplace Lawyers addressed to the AHRC with subject "Complaint by Brendan Kelly against the Department of Human Services". It comprises 34 pages. It summarises the claims made and evidence relied on and makes submissions as to applicable law and remedies claimed. It is endorsed "Attachment B-2" in the same typeface as Attachment A. I will refer to it as the complaint letter; and (c) A copy of an email dated 5 August 2016 from Mr Kelly to Mr Kowal concerning Ivan's conduct. It is endorsed "Attachment B-3" in the same typeface as Attachment A. 5 Mr Kelly claims the following relief: (a) A declaration under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) that the Commonwealth took unlawful discrimination against him by reason of certain pleaded contraventions; (b) An order that the Commonwealth pay him $500,000 in respect of general damages for hurt, humiliation, distress, psychiatric injury and loss of work capacity, $50,000 (approximately) in relation to past and future medical expenses; $4,048,159.20 (to be refined closer to trial) as compensation for past and future loss of income (including loss of superannuation contributions) and $100,000 by way of aggravated damages; (c) An order that Ms Stone and Mr Kowal be jointly and severally liable to make or to contribute to all but the aggravated damages claimed against the Commonwealth referred to in (b); (d) An order that Ms Stone pay Mr Kelly $50,000 by way of aggravated damages; (e) Declarations that Ms Stone and Mr Kowal committed unlawful discrimination within the meaning of s 3(1) of the AHRC Act by reason of certain pleaded contraventions; (f) A pecuniary penalty payable by the Commonwealth in relation to contraventions of s 50 of the Fair Work Act and that penalty be paid to Mr Kelly pursuant to s 546(3)(c) of the Fair Work Act; and (g) Interest and costs.

[5]

Rule 16.21 10 Rule 16.21 of the Federal Court Rules relevantly provides as follows: 16.21 Application to strike out pleadings (1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading: (a) contains scandalous material; or (b) contains frivolous or vexatious material; or (c) is evasive or ambiguous; or (d) is likely to cause prejudice, embarrassment or delay in the proceeding; or (e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (f) is otherwise an abuse of the process of the Court. 11 Ultimately, whether a pleading will be struck out depends upon whether, in the particular circumstances, it is necessary to do so in the interests of justice: John Holland Pty Ltd v Maritime Union [2009] FCA 437 at [59]-[60] (Graham J). The power to strike out pleadings is discretionary and should be employed sparingly and only in a clear case: Radisch v McDonald [2010] FCA 762; (2010) 198 IR 244 at [20] (Gilmour J). An overly pedantic or purist approach should not be taken to the pleadings consistent with s 37M of the Federal Court of Australia Act: see Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 at [8]-[9] (Stewart J) and the cases there cited. Pursuant to s 37M, the Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: C v Commonwealth of Australia [2015] FCAFC 113; 234 FCR 81 at [59] (Tracey, Buchanan and Katzmann JJ). 12 For the purposes of r 16.21(1)(d) of the Federal Court Rules, a pleading is embarrassing if it is unintelligible, ambiguous, vague, evasive or too general with the consequence that the opposing party is "embarrassed" because that party does not know what is alleged against them. The power to strike out a pleading under this rule also arises where a pleading raises a false issue as it would prejudice the other side in having to contest the issue and would inevitably introduce unwarranted delay in the resolution of the real issues: Radisch v McDonald at [33]. 13 For the purposes of r 16.21(1)(e) of the Federal Court Rules, the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action; rather, the question is whether it would be open to the applicant upon the pleadings to prove facts at the hearing which would constitute a cause of action: Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 131; (1994) 121 ALR 405 at [20] (Beaumont J). 14 Relevant principles were conveniently summarised in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226 at 236 (Beaumont J): (a) A "reasonable cause of action" means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant. In such a case, the claim cannot be struck out: Davey v Bentinck [1893] 1 QB 185; (b) The mere fact that the case appears to be a weak one is not of itself sufficient to justify striking out the action: cf Wenlock v Moloney [1965] 1 WLR 1238; (c) Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455; (d) It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised; and (e) Where a point of law has to be decided, and the judge is satisfied that s/he can appropriately do so thereby avoiding the necessity of, and expense in going to trial, s/he is entitled to determine the point: cf Williams & Humbert v W & H Trade Marks [1986] AC 368. See Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [9] (Kenny J) whose analysis of relevant principles was cited and described as "persuasive" in Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 (Perram, Dodds-Streeton and Griffiths JJ) at [42]-[43] and [93].

[6]

Summary judgment 15 Section 31A of the Federal Court of Australia Act relevantly provides as follows: 31A Summary judgment … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. … 16 In C v Commonwealth of Australia at [56]-[58], the Full Court explained the appropriate application of s 31A of the Federal Court Act as follows: Both the Federal Circuit Court and this Court have power, under s 17A of the FCCA Act and s 31A of the FCA Act respectively, to give judgment for a respondent if the Court is satisfied that the applicant "has no reasonable prospect of successfully prosecuting the proceeding …". Complementary powers are also to be found in the Rules of both courts: see r 13.10(a) of the FCC Rules and r 26.01(1)(a) of the FCR. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend "the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141. As both sections expressly provide, an applicant may have "no reasonable prospect of successfully prosecuting [a] proceeding" even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has "no reasonable prospect" of success weight must be given to the expression as a whole and expressions such as "untenable" or "groundless", whether or not used in conjunction with "intensifying epithets" such as "clearly" or "manifestly" should not be adopted as substitutes for the statutory language: Spencer at 141. 17 Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Caution should be exercised where there are complex facts or issues of mixed fact and law. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court, the Court hearing an application under s 31A of the Federal Court of Australia Act could justifiably conclude that the proceedings had no reasonable prospect of success: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [25]-[26] (French CJ and Gummow J).

[8]

Relevant provisions of the DD Act and the SD Act 18 The direct discrimination claims rely on ss 15 and 123 of the DD Act and submissions also rely on s 4(1) of the DD Act which relevantly provide as follows: 4 Interpretation (1) In this Act, unless the contrary intention appears: … Commonwealth employee means a person who: (a) is appointed or engaged under the Public Service Act 1999; (b) holds an administrative office; or (c) is employed by a public authority of the Commonwealth; or (d) holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; or (e) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or (f) is a member of the Defence Force; or (g) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979). … employment includes: (a) part-time and temporary employment; and (b) work under a contract for services; and (c) work as a Commonwealth employee; and (d) work as an employee of a State or an instrumentality of a State. 15 Discrimination in employment … (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. … 123 Conduct by directors, employees and agents … (2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. … 19 Sections 4, 14 and 106 of the SD Act relevantly provide as follows: 4 Interpretation (1) In this Act, unless the contrary intention appears: … Commonwealth employee means a person who: (a) is appointed or engaged under the Public Service Act 1999; (b) holds an administrative office; (c) is employed by a public authority of the Commonwealth; (d) holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; (e) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918 or the Naval Defence Act 1910; or (f) is a member of the Defence Force; or … employment includes: (a) part-time and temporary employment; (b) work under a contract for services; and (c) work as a Commonwealth employee 14 Discrimination in employment or in superannuation … (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the terms or conditions of employment that the employer affords the employee; (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. … 106 Vicarious liability etc. (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. …

[10]

Pleadings at ASOC [181], [182], [185] and [189] and ASOC [188] and [191] insofar as they relate to Ivan's conduct 23 The Commonwealth seeks to strike out the direct disability discrimination claims relating to Ivan's conduct comprised in ASOC [181], [182], [185] and [189]. It also seeks to strike out ASOC [188] and [191] insofar as they relate to Ivan's conduct. In those paragraphs, Mr Kelly pleads that: (a) On the ground of Mr Kelly's disabilities, Ivan treated Mr Kelly less favourably than he would have treated a person without his disabilities: ASOC [181]. Ivan therefore discriminated against Mr Kelly for the purposes of s 5(1) of the DD Act: ASOC [182]; (b) Ivan's conduct was engaged in as "an employee or agent" of the Commonwealth and "within the scope of his … actual or apparent authority" for the purposes of s 123(2) of the DD Act: ASOC [185]. Therefore the Commonwealth is taken to have unlawfully directly discriminated against Mr Kelly for the purposes of s 5 of the DD Act: ASOC [188]; (c) Ivan's conduct occurred "in the terms or conditions" of Mr Kelly's employment and involved subjecting him to the detriments pleaded at ASOC [175]: ASOC [189]. The detriments pleaded at ASOC [175] are: Mr Kelly became highly anxious, agitated, traumatised and depressed, experienced sleep disturbance, feelings of panic, obsessive negative ruminations and easy tearfulness, had negative cognitions (feelings of pessimism, hopelessness, worthlessness and entrapment), his ability to concentrate and task persist significantly deteriorated, his social and occupational functioning was impaired and he became incapable of attending work and communicating with the Commonwealth; and (d) In the premises, the Commonwealth unlawfully discriminated against Mr Kelly in contravening s 15(2)(a), (b) and (d) of the DD Act: ASOC [191]. Mr Kelly does not press the pleading of contravention of s 15(2)(c) of the DD Act at ASOC [191] and the Commonwealth's submissions directed to that paragraph are not addressed below. 24 The Commonwealth says that as Ivan was on a student placement, he was not an employee or agent of the Commonwealth and therefore s 123 of the DD Act does not apply. 25 Mr Kelly seeks leave to include: (a) FASOC [165A] (such that it would appear after ASOC [180]) as follows: The conduct of [Ivan] pleaded at [24]-[26] and [28]-[30]: a. caused the Applicant to be especially traumatised; Particulars The Report of Dr Chee at Annexure W of the Complaint to the Australian Human Rights Commission b. caused the Applicant to be visibly, distressed, anxious and hypervigilant, such that [Ivan] would have been aware of that fact; Particulars The Report of Dr Chee at Annexure W of the Complaint to the Australian Human Rights Commission Written statement of Peter Kowal dated 24 February 2017 c. was calculated to cause an increase in the Applicant's anxiety and hypervigilance and/or to provoke an emotional reaction in the Applicant; d. was carried out in circumstances where the Applicant was a particular target of [Ivan]; e. was not engaged in by [Ivan] to the same extent in relation to people that did not have the Applicant's disabilities, such as the Second Respondent. (b) FASOC [169A] (such that it would appear between ASOC [184] and [185]) as follows: Between about 15 June 2016 and August 2016, [Ivan]: a. was required by the First Respondent to perform social work and other duties as reasonably directed of him, including general social work duties, interviewing clients (by telephone and in person), counselling clients (by telephone and in person), monitoring the team's email inbox, answering calls, providing advice and education to customer service officers (known as "case consulting"), liaising with community agencies, all of which work was for the benefit of the First Respondent and was part of work ordinarily undertaken by social workers; b. was required by the First Respondent to attend work at the Hurstville Centre at specified times on specified days and not to attend the Hurstville Centre on other occasions; c. was required by the First Respondent to comply with its policies and practices, including its Code of Conduct; d. used the equipment and tools of the First Respondent in the performance of duties, including a computer, keyboard and phone of the First Respondent; e. had a level of access to the Social Work Information System and assessment reports, which was equivalent to that of a social worker; f. was subject to supervision by the Second and Third Respondent and other employees of the First Respondent; g. was required by the First Respondent to wear a badge which had the "Centrelink" emblem.

[13]

The Commonwealth's evidence 29 For the proposition that there is no basis on which Ivan was an employee or agent of the Commonwealth, the Commonwealth relied on affidavits affirmed by Ian Christopher Bennett, a solicitor employed by Sparke Helmore Lawyers, the Commonwealth's legal advisors, on 28 February 2020 (with annexures marked "IB2") and 8 June 2022 (with annexures marked "IB3"). 30 Mr Bennett deposed that the Commonwealth and UWS had a standing deed of agreement dated 18 May 2015 (UWS placement deed) pursuant to which students of UWS undertook short-term placements with the Commonwealth as part of their course requirements. Relevant terms are set out at [36]-[39] below. In his affidavit affirmed on 28 February 2020 at [10], he went on to depose that: Student placements facilitated under these arrangements (including the Deed of Agreement): (a) were unpaid (b) did not constitute or create an employment relationship between the student and the [Commonwealth] (c) did not involve the [Commonwealth] providing any remuneration, payment or other financial benefits to the students, and (d) did not carry any expectation that the students would perform work or otherwise represent the [Commonwealth] in the performance of its operational functions. 31 I note that, while the UWS placement deed was in evidence at the hearing (it was annexure IB2-3), neither a student placement deed in the form of the template at Annexure B to the UWS placement deed which had been executed by Ivan nor other materials related to his placement were in evidence. 32 The High Court of Australia's decisions in Construction Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, (2022) 96 ALJR 89 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144 (ZG Operations) are authority for the proposition that where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor are the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship. Whether Ivan had provided a student placement deed to the Commonwealth or whether there was some other written arrangement between them was therefore highly relevant. 33 Accordingly, I gave the parties an opportunity to provide further submissions in light of those High Court decisions and for the Commonwealth to provide further evidence relating to Ivan's placement. It was in response to this invitation that the Commonwealth filed Mr Bennett's third affidavit affirmed on 8 June 2022. In his third affidavit, Mr Bennett deposed that, after extensive searches of the Commonwealth's records and systems and engaging with contacts at UWS to review their records and systems, the Commonwealth was unable to locate a student placement deed executed by Ivan. 34 In his affidavit affirmed on 8 June 2022, Mr Bennett noted that, under cl 5 of the UWS placement deed, UWS students, such as Ivan, who would undertake a placement with DHS were expected to complete: (a) A student placement form, the template for which is Annexure A to the UWS placement deed: see [41] below; (b) A student placement deed, the template for which is Annexure B to the UWS placement deed: see [40] below; and (c) Other "on-boarding" and precondition documentation. See the materials referred to under the heading "Placement related materials" commencing at [42] below.

[14]

UWS placement deed 35 The Commonwealth relied on cll 5, 6 and 7 of the UWS placement deed. It relied in particular on cll 5.5, 6 and 7.1. For convenience, I will also set out at [38] below all of cll 5 and 9 on which Mr Kelly relies. 36 I note that the recitals to the UWS placement deed provided as follows: Background A The Institution provides education and training to students. B The department has agreed to accept one or more students of the Institution for placement within the department, for the purpose of assisting the student to develop professional and technical skills and to apply theoretical knowledge in the workplace. C The parties have entered this Deed to specify the terms and conditions under which students may be placed with the department for work experience. 37 Clauses 1 and 2 of the UWS placement deed set out defined terms and interpretation rules. Clause 3 of the UWS placement deed states that both parties intend the Deed to be legally binding and enforceable and cl 4 provides that the Deed will commence upon its execution and continue until terminated under cl 13. 38 Relevantly, cll 5-9 and cl 13 of the UWS placement deed provided as follows: 5. Student Placements 5.1 Where the Institution seeks to place a Student with the department, the Institution will ensure that for each Student the department is provided with· a) a Student Placement Form signed by the Institution and the Student; b) evidence that within the 6 months preceding the Student's Placement Commencement Date, the Student has been the subject of a criminal history check (and if the Student will be working with children during the Placement, a working with children check). 5.2 The documents in clause 5.1 must be sent to the department in a timeframe that allows the department to assess the suitability of the Student for placement within the department. 5.3 The department will assess the Student's suitability for placement within the department and, if the Student is suitable for a placement, will send the Student a formal letter of offer and a Student Placement Deed for the Student to sign and return before the Placement commences. 5.4 The Institution acknowledges that: a) the department may, in its absolute discretion, decline to accept a Student for a placement; b) the department must be satisfied with the results of any criminal history checks or working with children checks; and c) if a Student fails to comply with the requirements of this Deed or his/her Student Placement Agreement, the department may immediately terminate the Student's Placement. 5.5 The Institution and the department acknowledge that the department will not at any time during, or as a result of, the Placement: a) be taken to be the employer of any Student; or b) be required to pay any amount to any Student in respect of salary, stipend, related on-costs (including without limitation in respect of superannuation) or other remuneration or provide any Student with leave or other employment-related entitlements. 5.6 The department is not required to make any payment to the Institution under this Deed. 6. Responsibilities of the department 6.1 The department is, at all times, responsible for the standards of care provided to its customers. 6.2 The department will co-operate with the Institution and the Student to achieve the agreed learning objectives of the Student while on Placement. 6.3 The department is responsible for; a) providing a safe workplace for the Student to undertake his/her Placement; b) providing appropriate Work Health and Safety training to the Student at the commencement of the Placement; c) the supervision of the Student by appropriately qualified officers for the duration of the Student's Placement with the department; d) providing each Student with the facilities, materials and equipment necessary to undertake the Placement; and e) the evaluation of the performance of the Student while on Placement with the department. 7. Responsibilities of the Institution 7.1 The Student is, at all times, a representative of the Institution. 7.2 The Institution is responsible for selecting and preparing Students for Placement, including; a) making Students aware of privacy and confidentiality requirements in relation to the department's customers; and b) the Student's responsibilities as a worker under the Work Health and Safety Act 2011, especially the requirement to work in a safe manner and in a way that is without risk to the health, safety and welfare of their self and any other person and assists DHS meet its own responsibilities under WHS Law. 7.3 The Institution indemnifies and must keep indemnified the Commonwealth, its employees and agents (those indemnified) against all claims, actions, proceedings, liabilities, expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against those indemnified) that those indemnified may suffer or incur as a result, whether directly or indirectly, of: a) any breach of this Deed by the Institution; b) any breach of the Student Placement Deed by the Student; c) any unlawful or negligent act or omission or wilful misconduct of the Institution or its officers or employees in connection with this Deed or a Placement; d) any unlawful or negligent act or omission or wilful misconduct of the Student in the course of or arising out of a Placement or otherwise in connection with this Deed; or e) any loss of or damage to any property or injury to or death of any person caused by the Student in the course of or arising out of a Placement or otherwise in connection with this Deed. 7.4 The Institution's liability under clause 7.3 will be reduced to the extent that any unlawful or negligent act or omission or wilful misconduct of the department or its employees contributed to the event giving rise to the obligation to indemnify. 8. Insurance Coverage 8.1 The Institution must, at all times during the term of the Deed and for seven (7) years after the termination or expiration of the Deed, maintain the following insurance requirements: a) Public liability: minimum of $[redacted] in respect of each claim, b) Professional Indemnity: minimum of $[redacted] in respect of each claim; and c) Personal accident insurance for claims relating to Student personal injury. 8.2 The Institution must give the department access to view the relevant insurance policies and/or provide a copy of certificate/s of currency upon request by the department. 9. Intellectual Property 9.1 The Institution acknowledges that under the Student Placement Deed the Student assigns to the Commonwealth all intellectual property rights created by the Student during the course of the Placement. 9.2 Clause 9.1 is limited to any intellectual property rights created which would accrue to the Commonwealth if the Student was an employee of the department. … 13. Termination 13.1 Either party may, with 30 days written notice, terminate this Deed for any reason whatsoever. 13.2 If the Institution breaches this Deed, the department may by written notice immediately terminate this Deed. 13.3 If this Deed is terminated under clause 13.1 prior to the end of a Student's Placement, the department will instruct the Student that his/her placement is to cease immediately. 39 The balance of the UWS placement deed contains a confidentiality clause (cl 10), a provision that the obligations under the deed survive completion of a placement and the indemnity survives termination of the Deed (cl 11), a governing law clause (cl 12), a dispute resolution clause (cl 14), a severability clause (cl 15), provision for each party to bear its own costs in relation to preparation, negotiation, execution and performance of the Deed (cl 16), notice (cl 17) and an entire agreement and variation clause (cl 18). It also contained Annexures A and B.

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Student placement deed 40 Annexure B to the UWS placement deed is a template of the student placement deed which contemplates that it will be a deed poll. It states that the student agrees to comply with the following terms. 1. Compliance with directions and procedures 1.1 In undertaking the Placement, the Student will comply with all reasonable directions given by supervisors nominated by the Department of Human Services (the department) and must comply with and not be in breach of, all general procedures, directions and requirements of applicable legislation that apply to department employees, and in particular the: • Work Health and Safety Act 2011: and • Privacy Act 1988. 1.2 The Student is not an employee or agent of the department. The Student will not be paid, recompensed or remunerated in any way by the department for the placement. 1.3 If the Student breaches any of his/her obligations as outlined in this document his/her placement with the department may be terminated, effective immediately. 2. Security 2.1 The Student consents to, and will co-operate with, all relevant security clearance procedures required by the department in relation to the Placement. 2.2 The Student will ensure that all personal information it provides to the department is accurate and complete and will update such information where relevant to the Placement or the department's security assessment of the Student. 3. Work Health and Safety The Student must, while on location on department premises, perform all work in a safe manner and in a way that is without risk to the health, safety and welfare of any person and assists OHS meet its own responsibilities under WHS Law. 4. Confidentiality 4.1 In the course of the Placement, the Student may become aware of, obtain or generate information of a confidential nature (Confidential Information), such as confidential details regarding Rehabilitation and Assessment Division job seekers and clients, employers or other organisations that engage the department's services and personal details regarding the individuals to whom the Rehabilitation and Assessment Division provides rehabilitation and other services. 4.2 The Student must keep such Confidential Information confidential, use it only to undertake the Placement, and must not disclose it to any other person unless required by law or approved in writing by the department. This obligation continues after the end of the Placement until the information enters the public domain other than by disclosure by the Student. 5. Intellectual property [Clause 5.1-5.9 seeks to vest in the Commonwealth all intellectual property rights created by the student in the course of the placement and they are expressed to continue after the end of the placement]

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Placement related materials 42 Annexure IB3-2 contains an "Entry Level Check" form created by DHS. It is said to relate to "background suitability assessments for every individual who requires access to the department's assets, information and premises". It requires proof of identity, consents to a range of police and other checks and a confidentiality declaration. Ivan refers to his "Purpose or Role" as a "social work student placement" in the "Social Work Zone Sydney" with "Contact Person" as being "Peter Kowal/Kathleen Stone". The person completing the form is asked to fill in whether he or she is a "New APS Employee", an "APS Transfer", a "Student Placement" or "Work Experience". Ivan ticked "Student Placement". 43 Included in IB3-2 are the following documents relating to Ivan: (a) A national criminal history check with a date of issue of 11 March 2016. The reason for the check was said to be: "Individual; Work Experience In A Health Placement hospital Setting (health/vuln"; (b) A "working with children" check said to be valid to 10 January 2019. The stated type of clearance was "Valid for unpaid work only"; and (c) A DHS form entitled "Confidentiality Declaration for Visitors (non APS employees including contract staff)" signed by Ivan on 26 May 2016 and witnessed by Mr Kowal. In it, Ivan acknowledged and stated that he understood the "confidentiality and secrecy laws as stated in social security, family assistance, health, disability services, privacy and child support legislation". Ivan stated his occupation as "social work student". 44 Annexure IB3-3 contains an email dated 26 May 2016 regarding Ivan's anticipated student placement between the Placement Administrative Officer of UWS at the School of Social Sciences and Psychology and Ms Stone as the proposed "Field Educator" for the purposes of Ivan's placement at DHS. The email stated that: In agreeing to supervise a student, the School of Social Sciences & Psychology has the following broad expectations of supervisors: • Willing to draw up a learning contract with the student setting out the conditions and aims of the placement and detailing the nature of any project or tasks to be undertaken • Willing to verify that the conditions of the placement have been met • Willing to partake in a mid placement review and academic visit • Willing in conjunction with the student to evaluate the performance and progress of the student That email also attached: (a) A Student Insurance Confirmation Letter dated 26 May 2016 from UWS indicating that UWS had appropriate liability protections that protected Ivan and UWS in the event that Ivan became legally liable for injury to any person or damage to property (other than a motor vehicle) "while undertaking approved or recognised course related activities (including work experience and practicums)"; and (b) The UWS Field Education Manual.

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UWS Field Education Manual 45 Relevantly, the UWS Field Education Manual stated the following: 1 Forward The Social Work Field Education Manual provides students and agency-employed Field Educators (placement supervisors) with information about University expectations and policy frameworks for supervised field education placements in the four-year Bachelor of Social Work (BSW) program delivered at the Bankstown Campus and, in 2014 to be delivered also at the Parramatta Campus of the School of Social Sciences and Psychology (SSAP), Western Sydney University. … Practice learning takes place in two Units of the degree: 408 hours in Field Education 1 (FE1) during the third year of study (Autumn Semester), and 600 hours in Field Education 2 (FE2) during the fourth year (Spring Semester). The Learning Guides for FE1 and FE2 accompany the Field Education Manual and provide specific information about learning and teaching relevant to the type and nature of student field placement. … Field Education is a collaborative process between the University, agencies and students. We welcome comments and suggestions for improving the field education experience so that the Manual remains up to date, relevant and useful for students, agencies and the University. … 2 Field Education: Philosophy, Principles and Objectives 2.1 Philosophy of Field Education Field Education is a critical element of the student's professional development. The critical use of theory, knowledge and an understanding of a range of practice methods is an essential base for effective practice. It is a shared learning process involving the Student, the Field Educators, the staff of the host agency, service users, Field Education Coordinators and the University. 2.2 Principles of Field Education Field Education recognises the inter-relationship of Field agencies and Western Sydney University in the relationship between classroom education and field practice • Student field work placements are seen as central in the development of knowledge, values and skills in professional learning • Field Education is a commitment to academic/agency collaboration in research and practice area is to assist students in the accomplishment of learning objectives • Field Education aims to foster and encourage innovative fieldwork opportunities and initiatives in the location of new settings, new tasks and new processes The University and specifically the School of Social Sciences and Psychology, is committed to student self-responsibility and active participation in all aspects of Field Education, and • The School encourages constructive criticism and evaluation of all aspects of the field program. 2.3 Objectives of Field Education • to develop a knowledge of the social, political and economic constraints on social welfare due to the political-economic distribution of power and resources • to develop a critical analysis of the place of social work, youth work and welfare work in society, with particular attention to the structures imposed by age, class, gender, race, ethnicity and sexuality • to gain knowledge of a variety of methods of effective social work, youth work and welfare work practice • to promote the competencies of practice skills in a variety of practical settings, including community work, casework, group work, research and social policy to promote the ability to reflect on practice and constructively confront its ambiguities • to promote the ability to apply theory to practice in order to help individuals and promote social change • to develop competence and responsibility as a worker • to develop interpersonal and system intervention skills which facilitate culturally sensitive, non-sexist, non-racist and non-discriminatory approaches to individuals, groups, communities and organisations • to help students develop an awareness of self and ability to articulate their personal value stance; and • to evaluate the field work placement in relation to those objectives. 3 Course Structure … A student is required to complete the Field Education component of the course in two agency settings, in a minimum of two practice areas and engage with experiences in interpersonal helping and other recognised social work intervention methods. The course aims to provide a model of professional education where there is integration between theory and practice. 4 Placement Expectations Whilst on placement it is anticipated that the student will have opportunities to learn a range of skills in a variety of settings, experience and complete a number of tasks and work within a number of different contexts. Students are encouraged to seek experiences from a broad number of placement contexts, from small community-based agencies to large government organisations over the course of their studies. 4.1 Responsibilities and expectations The effective operation of the Field Education program rests on the collaboration between the students, Field Educators and the University. The Field Education program relies on: • the support and resources provided by the Field Education Coordinators • the co-operation of the agencies and organisational commitment to student education • individual practitioners and professional commitment to practice education; and • the individual student and their commitment to Field Education. The responsibilities of the University, Field Educators and Students are outlined as follows: 4.1.1 The University • To ensure the maintenance the minimum educational and professional standards of the Field Education program in line with course accreditation guidelines. 4.1.2 Director of Academic Program … 4.1.3 Field Education 1 & 2 Academic Unit Coordinators … 4.1.4 The Social Work Field Education Coordinator … 4.1.5 The Western Sydney University Academic Liaison Visitor • Visits the Field Educator and student together in the placement agency at least once during the placement • Monitors student progress and assist the student and the Field Educator in dealing with any issue that may arise • Assist the student to integrate the theory/practice continuum within the curriculum • Evaluates student performance and provides a brief written report to the Field Coordinator on student visits • Brings any students in difficulty on placement to the immediate attention of the Field Education Coordinator. 4.1.6 The Placement Agencies • Provide staff time for field teaching and other appropriate support to Field Educator • Provide opportunities for the student to meet and know agency staff and their work • Office space (within agency limitations), facilities and travel costs for work undertaken by students in the placement • Accept student participation in the organisational structure of the agency setting • Provide affirmative action for students with disabilities and disadvantaged backgrounds • Inform the student and University of any specific policies relevant to the student placement 4.1.7 The Field Educator (Agency-based student supervisor) • Be accessible to students, and available for regular contact. A minimum of 1 hour for every 20 hours spent on placement should be allocated for student-specific formal and informal supervision • Be available for an interview with the student prior to commencement of placement, so that both can agree on placement goals, and possible tasks and projects the student can undertake • Inform students of the agency's policy and procedures on implementing grievance complaints, EEO/EOWA strategies, sexual harassment policies and work health and safety procedures • Given after explanation and information so that the student can fully understand the agency's objectives and their role within it • Allocate work that will develop the student's ability, as well as giving the student experience of typical work within the agency • Assist the student to continually review the development of their skills, attitudes, knowledge and ability to work co-operatively with agency staff and clients. Where possible, attend seminars on supervision and field learning • Complete the Learning Contract with the student within the first 100 hours of the placement • Provide ongoing feedback to the student • Assist the student to explore the connection between theory, values and practice • Complete the Mid-Placement Review with the [sic] halfway through the placement hours and contact the University staff if there are any difficulties identified. Be available for the placement visit by a member of the University • Observe and discuss with students their strengths, successes and areas for further development • Discuss with the student any difficulties which may arise during the placement and if such matters are not successfully resolved to notify the Field Education Unit Coordinator in Field Education as soon as possible • Complete with the student the final Placement Evaluation Report • Ensure that all compulsory forms are completed and signed (Learning Contract, mid-placement Review, Final Evaluation of Student Performance and Student Log of Hours) • Inform the Field Education Coordinator of significant changes taking place in the agency which might affect the placement 4.1.8 The Student • To be eligible for field placements, students must: Be currently enrolled as a BSW student at Western Sydney University and have completed the Working with Individuals and Families Unit (no400508), and have completed all special requirements Participate in pre-placement preparation and interviews with the Field Education Coordinator and seek out information regarding placements available • Identify personal learning goals for each placement. The Field Education Coordinators will assist students as appropriate so that goals reflect the assessment requirements for each field placement • On advice of the placement offer, arrange a pre-placement interview with the allocated Field Educator before commencement of placement so that learning goals and possible tasks and projects can be negotiated. Advise the Social Work Field Education Coordinator of the outcome of the pre-placement interview • Begin to negotiate a Learning Contract with their Field Educator as soon as possible after placement begins (i.e. within the first few days of placement) or at the pre-placement interview • Complete the Learning Contract within the first month of placement and provide the Unit Coordinator with a signed copy • Regular meetings with the Field Educator to discuss and evaluate student performance and learning. The time recommended is for an uninterrupted period of at least one hour for every twenty hours on placement • Make full use of the Field Educator supervision sessions by identifying issues for discussion in advance of the session and by participating in the reflection and further development and evaluation process with the support of their Field Educator • Use the placement experience for self-directed learning; the student will taking initiative for their own learning by being prepared to explore unknown areas and by monitoring their own progress and learning while on placement • Treat services, workers and clients with respect and, maintain confidentiality in accordance with agency guidelines and policies • Make sure an evaluation of your progress takes place via the Mid-placement Review, followed immediately by the Academic Liaison Visit • Raise any placement concerns with the Field Educator. When issues cannot be resolved, the student and the Field Educator should contact the Field Education Unit Coordinator as soon as possible • Work agency hours and accept agency rules, regulations and protocols • Students must dress appropriately while on placement • Personal use of mobile phones is not permitted during placement hours • Ensure that all compulsory forms are completed and signed by the Field Educator (Learning Contract, Mid-placement Review, Final Evaluation of Student Performance and Student Log of Hours) and submitted at the appropriate time with other components of the Practice Portfolio (refer to Unit Learning Guides for specific information) • Submit the required placement report (Practice Portfolio) within fourteen (14) days of completing the placement • Notify the Field Education Coordinator of any change of date or circumstances relating to the placement. 5 The Placement Process … 5.1 Criteria for Placement Allocation … Every placement opportunity allows the student to develop work skills and enhance their understanding of the social work role. … Where possible the placing of students will be avoided where: • they are or have been in paid employment (see below for exceptions) • they have given continuous voluntary service • they are related to or have close personal ties with the Field Educator; and/or • they have recently been a client 5.1.1 Placement in place of employment The University does not generally support students completing placements in their place of employment because of the high potential for a conflict of interest that may impact negatively on the student's achievement of career-developing learning. A placement at a student's place of employment may be considered if the student can demonstrate and document the following: 1) All potential conflicts of interest are identified and strategies are specified to address them if conflicts do arise 2) The placement Field Educator must not be the usual line manager/supervisor 3) There should not be a direct line of accountability to their regular workplace line manager for meeting their placement learning goals 4) There is no relationship between placement goals and routine work responsibilities 5) Performance expectations of the student are clearly identified and differentiated from their role as a paid staff member 6) It is specifically required that whilst completing identified placement hours student should not be expected to meet their paid workload responsibilities 7) Only one placement may be taken in the student's workplace. These conditions must be addressed in a written learning contract that is discussed and signed off by the student, the nominated placement Field Educator and the Social Work Field Education Coordinator with advice to the Field Education Unit Academic Coordinator. These conditions must be met prior to the placement commencing. … 6 Supervision: Field Educators 6.1 Supervision Supervision is crucial to the placement experience and assists students to plan, review and assess their progress while on placement. Supervision serves three broad functions: • The Administrative Function - this refers to the issues of the management of work tasks while on placement. It includes the planning and assignment of work, the review and assessment of work; the responsibility and accountability for work. • The Educational Function - this refers to the provision of knowledge and skills which are necessary for effective practice. Educational supervision ensures professional development as a worker. • The Supportive Function - this refers to assistance to help deal with job-related stress and with developing attitudes and feelings conducive to maximum job performance. It helps sustain worker morale and helps to develop a feeling of worth, a sense of belonging while in the agency and, a sense of security in performance. Source: Kasushin, A. (1976) Supervision in Social Work Columbia Press: N.Y. The Field Educator and student are required to set aside a regular time each week in order to achieve these Field educator functions. Supervision can be both formal (e.g. regular supervision meetings) or informal (e.g. feedback while performing tasks). This formal and informal combination of supervision should be at least 1 hour per 3 days and 1.5 hrs per 5 days whilst the student is on placement. While there may be very real time and resource constraints limiting opportunities for supervision while students are on placement, it is important that formal supervision occurs regularly while students are on placement. Supervision is a time for feedback for students' future growth and development. There must be both positive and negative feedback as these are essential if students are to further develop their knowledge and skills. The Field Educator/student relationship is a professional, teaching one and as such must involve helping the student to become aware of her/his strengths and weaknesses if she/he is to develop into a skilled worker. If the Field Educator considers that the student is not responding to supervision, please contact the relevant Field Education Social Work Field Education Coordinator immediately. … 7 Evaluation and Assessment Social Work Field Education at Western Sydney University is assessed under a Mastery assessment system where the student's performance is evaluated against a particular task to be performed or set of skills to be measured. In mastery assessment, criteria are developed which provide the basis of the behaviours, skills and attitudes expected on placement. Students are required to achieve a satisfactory level of competency for each of these criteria by the end of the placement. The student must perform all those criteria appropriate to the agency's functions. The criteria are designed in Unit Learning Guides and student placement evaluation forms including learning goals and tasks as set out in the Learning Contract negotiated between student and the Field Educator. … 7.1 The Learning Contract: completed by 100 hours It is essential that a written Learning Contract be discussed and formalised between the student and Field Educator as close to the beginning of placement as possible. A form is provided for this. Once signed by the student and Field Educator, students are required to submit a copy of the Learning Contract to the Field Education Unit Academic Coordinator within the first 100 placement hours. General Principles for the Learning Contract The Learning Contract will: • specify the goals and expectations of both the student and the Field Educator, relation these to specific tasks and responsibilities, with mutual accountability for the tasks agreed to be carried out • reflect the learning styles of the student and take into account the Field Educator's learning and teaching styles • anchor the student's learning goals to both ways of achieving these and the student's starting point in relation to each of these goals • remain a flexible document open to change, with reasons for the change being clear to all concerned (student, Field Educator, Field Education Unit Academic Co-ordinated) • address practical matters including placement hours, expenses and work routines, processes of supervision and signing off by the Field Educator of the log of a student's house at placement • address the code of behaviour expected of the student while in the placement agency, e.g. confidentiality policies, and ethical behaviour and responsibilities • identify the criteria for assessment that will be used as a basis for reaching the student's learning goals A signed copy of the Learning Contract is sent to the Field Education Unit Academic Coordinator who may, if necessary, ask for changes to ensure that the student's learning opportunities are enhanced. The student will keep a copy of the Learning Contract for inclusion in their Practice Portfolio. 7.2 The Mid-placement Review: 300 hours FE2 The Mid-placement Review is completed by the Field Educator and student during the supervision time, immediately prior to the visit by the University's Liaison Visitor. A form is provided for the review. Mid-placement Reviews offer students and Field Educators an opportunity to consider the student's progress to date and to specify objectives for the rest of the placement. It is generally helpful to begin by discussing the Learning Contract established at the beginning of placement, assessing the progress achieved and identifying areas of further work. If either the student or the Field Educator has any concerns about the placement their concern should be raised at this time. If there are concerns about how the placement is progressing, or if the student's performance is not considered satisfactory, the FE Academic Coordinator should be contacted immediately. 7.3 Western Sydney University Academic Liaison Visit: follows the Mid-placement Review A visit from the University's Academic Liaison Visitor will be conducted as soon as possible after the Mid-placement Review. The purpose of the visit is to monitor student progress and to assist the student and the Field Educator in dealing with any issue that may arise. … The Mid-placement Review completed by the Field Educator and student should form the basis of the discussion with the Liaison Visitor. This can often assist the student to integrate the theory/practice continuum within the curriculum and help apply to the context of placement. The Liaison Visitor will evaluate student performance and provide a brief written report to the Field Education Academic Coordinator. The student will sign this report. The Liaison Visitor will ensure that the concerns of any student in difficulty on placement are brought to the immediate attention of the FE Academic Coordinator. 7.4 The Field Educator's Final Evaluation Report The Final Evaluation form is completed at 408 hours for FE1 students and 600 hours for FE2 students. It is the medium for both the student and Field Educator to reflect and comment on the placement experience. The mid - placement Review and the Final Evaluation aim to assist the student in the learning-by-doing process by evaluating and identifying areas of strength and areas which require further attention, both of which will become apparent during the placement. The content of the completed Final Evaluation should not be a surprise to the student. … 7.5 Unsatisfactory Results If a student's performance is assessed as unsatisfactory by the Field Educator, the matter will be referred to the Field Education Academic Coordinator for a final decision. The Academic Coordinator will make the final assessment decision through discussions with the Field Educator and the student. Field Educators are encouraged to raise any concerns with the FE Academic Coordinator before the final assessment of the student's performance. … 8 Important Information 8.1 Placement Hours and Work Routines Students are expected to perform as a part of the working team of the placement agency and to comply with agency requirements with respect to matters such as: • hours of work • time in lieu arrangements • maintaining sign on/off records • recording movements • maintaining office systems such as recording messages, petty cash, files, records and reports • accountability; and • any other agency specific policies. At the commencement of the placement the student and agency Field Educator need to discuss these matters and details specific requirements in the Learning Contract. 8.2 Expenses Students are expected to meet the expenses of getting to and from the placement as part of their overall Course expenses. Any other expenses within placement which arise as a requirement of that placement should be met by the placement agency. Common examples are: travel to visit clients, to attend meetings, to visit other agencies. If a workshop is a compulsory part of placement it is expected that the agency will pay the student's fees to participate. 8.3 Cars The procedures and policy concerning the use of student vehicles on placement will vary from agency to agency. It is important to be very specific about the agency requirements concerning students driving agency cars or using their own private vehicle on agency business. Students are advised that University insurance does not cover student use of vehicles - either their own or the agency's. Before a student is asked to use their own car for placement -related tasks some discussion should be held with the Social Work Field Education Coordinator at Western Sydney University. 8.4 Insurance Students enrolled in the University are covered by the University for personal injury or accident as well as public liability insurance. This is applied in the confirmation document sent to both the student and the Field Educator. The University's policies cover students on all field experience programs which form part of the course requirements that they are enrolled in. Refer to the Western Sydney University website for details on student insurances: [web address]. There is an implied legal obligation on the part of the Placement Agency to provide a safe and secure work environment and to ensure as much is possible that the student is not placed in a position where their actions can result in damage to property or injury to themselves or other persons. This same obligation is imposed upon the University. There is no insurance cover by the University for students who arrange additional work experience beyond requirements of the Field Education unit. The agency should consider the student as having moved to being a volunteer and be insured on that basis. Any incidents which might affect a person's legal liability or claim of compensation should immediately be reported to the Field Educator and the Western Sydney University Social Work Field Education Coordinator. This facilitates the submission of accurate details about an incident whilst fresh in the mind of the person. Notification may not necessarily result in an insurance claim being submitted but it does generally assist in the finalisation of any claim which may be made at a later date. Notification protects the liability and rights of the person/s concerned. 8.5 Code of Conduct and Australian Social Work Association Code of Ethics It is important that students understand and implement the agency's code of conduct while on placement. This requires an effective orientation on the part of the Field Educators, managers and co-workers. It is recommended that these policies are discussed at the beginning of placement and are included in the Learning Contract. Ethical behaviour for social workers and other human service workers refers to three broad areas (specific contexts of in an agency's practice are also important to review): • responsibilities to clients and client groups, e.g. rules of confidentiality, accountability to clients, respect towards clients, promotion of free choice • responsibilities to colleagues, e.g. respecting colleague skills, loyalty and support of colleagues, dealing with unethical behaviour demonstrated by colleagues • responsibilities to employers and employer's organisations, e.g. adhering to statement of duties, using appropriate channels for raising concerns about work practices, distinguishing public and private statements in relation to professional practice. Documentation of agency policies and expectations may vary so it is important that students be made aware of these in order that their practice on placement demonstrates a conscious application of the agency's code of conduct. 8.6 Confidentiality … It is imperative that students be made aware of the bounds of confidentiality as they are applied in each placement setting. Field Educators need to discuss this issue with the students during the first days of placement and include the guidelines regarding confidentiality within the Learning Contract. Once a student has a clear understanding of the bounds of confidentiality, this should be clearly demonstrated by the student's practice when working with service users and other workers. Students are reminded that the principles of confidentiality also apply outside of the agency and placement setting. Students are required to de-identify all data about service users when writing their Placement Report or when discussing placement issues back in the classroom. It is not acceptable for students to not submit parts of the report because of 'confidentiality requirements' of the placement agency. If Field Educators or students have concerns about the appropriate means of recording by the student for the report please contact the Field Education Unit Academic Coordinator to discuss the issue. 8.7 Common Difficulties … 8.7.4 Student-in-difficulty … If any difficulty arises during the placement, the following process should be followed: • The student and Field Educator should meet to discuss the difficulty, consider means for addressing the issue and reach an agreement on action. • If an initial meeting between the student and Field Educator does not resolve the issue, the Field Education Unit Academic Coordinator must be contacted by either the student or the Field Educator. • The Field Education Unit Academic Coordinator will then visit the placement agency and meet with the student and Field Educator. The aim of this meeting is to review the differences in judgement about the difficulties, canvas responses to alternative courses of action and make a recommendation regarding the agreed future course of action for the student. • All final decisions will be the responsibility of the Field Education Unit Academic Coordinator. 8.7.5 Problems with the student performance evaluation In cases where the Field Educator is dissatisfied or uncertain about the level of a student's performance, this should be discussed with the student. The Field Educator will immediately contact the Field Education Unit Academic Coordinator so that further planning for the students' learning and evaluation can be determined. It is possible that students may become exposed to or are victims of discrimination during placement. While the Federal and State governments have anti-discrimination laws and grievance procedures to enforce these laws, attitudes concerning sex, race, physical impairment, age and sexual preference vary within the general community and placement agencies. Students should discuss any concerns with the Field Education Unit Academic Coordinator and/or Field Educator as appropriate. … 8.7.6 Sexual Harassment Sexual harassment and discrimination in workplaces and tertiary educational institutions is addressed in State and Commonwealth legislation. General guidelines for reporting sexual harassment include: 1) report incident to the Unit Academic Coordinator immediately 2) document details of the incident in writing 3) advise the Field Educator of claim notification In cases where the agency has relevant procedures and policy, these guidelines should be followed. … 8.9 Legal responsibility and liability While it is not possible to address all possible legal implications relating to students and field placements, the School of Social Sciences and Psychology adopts the following general principles. • The student is entitled to appropriate care and protection. • All work undertaken by students on placement is seen in the context that their field practice in an approved agency is under the supervision of that agency, and therefore it is deemed that the student does not and should not act independently without agency approval. • For work related to placement tasks and learning undertaken in an approved agency, the legal responsibility and liability is considered to rest with that agency. • If a student is involved in an incident that has legal implications, both the student and the agency should immediately inform the relevant Field Education Unit Academic Coordinator and keep them informed of progress related to the incident. • The student is entitled to appropriate legal information/support from Western Sydney University legal advisers. … 46 Clause 9.5 contains detailed listings of First Placement Expectations, Specific Professional Skills and Final Placement Expectations concerning the student's learning and professional development attained during a placement which are designed to guide the student and the Field Educator to meet placement expectations and graduate outcomes.

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Other matters 49 Also annexed to Mr Bennett's 8 June 2022 affidavit are: (a) A schedule of student placements with the Commonwealth being organised by thirteen universities in the period between January and June 2016 and noting Ivan's student placement (annexure IB3-6); (b) Internal correspondence (timestamped 18 August 2016) confirming the termination of Ivan's student placement (annexure IB3-7); and (c) An undated letter from Mr Kowal to Neil Hall at UWS confirming the cessation of Ivan's placement with effect on 11 August 2016 (annexure IB3-8). 50 The letter from Mr Kowal to Mr Hall stated: It is with some regret that I need to inform you that I have decided to terminate the Social Work student placement for [Ivan], at Hurstville Centrelink office. As you know Ivan's placement supervisor was Kathleen Stone. Unfortunately the placement did not begin well, with Kathleen taking almost three weeks leave almost immediately after Ivan started. Therefore a structure was not put into place, and there was a lot of ambiguity, about who was meant to supervise and support Ivan. Ivan also had almost two weeks off sick towards the end of this period. When both Kathleen and Ivan returned to the workplace, there were other issues relating to direction, performance, following instructions, attitude, self-direction and attendance times which were identified by Kathleen and others within the team. Kathleen felt that the supervisor student relationship was not proceeding as it should, and the placement was in jeopardy. These issues were discussed with Ivan and with his permission, Ivan was then handed over to another social worker, as a 'circuit breaker'. During this period Ivan's performance improved, and the placement was essentially back on track and deemed salvageable. It was explained to Ivan that after two weeks he would return back to the supervision of Kathleen, which he was in agreement with. The other social worker was not in a position to continue on as an alternate supervisor. I felt that with a suitable structure in place, a contract with learning goals in place, and both student and supervisor in agreement, the placement could proceed. Meanwhile, it became evident that there were other underlying tensions in my social work team, which could impact negatively on the student placement. There was a real potential that Ivan could needlessly be caught up in this. Whilst Ivan may not have been fully aware of these tensions, there was certainly an element of dysfunction within the team which made the continuation of placement impossible. After considering all options, and finding none suitable, I decided that the best course of action was to terminate the placement. I felt that as Ivan was not yet half way through his placement, he would be better served by an alternate placement away from the Centrelink environment. Although there were identified issues relating to performance at the beginning of the placement which lasted for some time, Ivan was eventually able to demonstrate that he would be able to display self-direction and effectively proceed as a student. My recommendation in this matter would be to give Ivan credit for 20 working days of placement. This would enable him to have a lengthy alternate placement. My belief is that he would be able to flourish in a supportive environment, and build upon the skills which he started to develop during this one. I wish Ivan all the best in his future social work career.

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The Commonwealth's submissions 51 The Commonwealth submitted that ASOC [181], [182], [185] and [189] and ASOC [188] and [191] insofar as they relate to Ivan's conduct should be struck out because there are no material facts pleaded which support the assertion at ASOC [185] that Ivan was an agent or employee of the Commonwealth with "actual or apparent authority" for the purposes of s 123(2) of the DD Act. The Commonwealth asserted that all that is said in this regard is at ASOC [23] (see [21(a)] above). I note that the matters which Mr Kelly seeks to plead in FASOC [169A] are designed to address that deficiency and the Commonwealth opposes that amendment. 52 The Commonwealth asserted that the evidence on which it relied demonstrated that: (a) Ivan was a tertiary student studying social work and enrolled with UWS. He was not appointed to any position with the Commonwealth under the Public Service Act 1999 (Cth); (b) He commenced a student placement with the Commonwealth pursuant to the standing UWS placement deed under which students of UWS undertook short term placements as part of their educational course requirements; (c) He did not receive any remuneration, payment or other financial benefit from the Commonwealth. It noted that the proposed FASOC [169A] does not assert that Ivan did receive remuneration or any other financial benefit; and (d) The Commonwealth was not under any expectation that Ivan would perform work or otherwise represent the Commonwealth in the performance of its operational functions. 53 The Commonwealth submitted that the High Court's decisions in ZG Operations and Personnel Contracting support the position that: (a) The proper classification of the relationship between the Commonwealth and Ivan was as a volunteer student work placement arrangement; (b) That classification could not give rise to a conclusion that Ivan was an employee or agent such as to render the Commonwealth liable for Ivan's conduct under the DD Act or the SD Act; (c) The UWS placement deed and associated documentation are determinative of the true nature of the relationship. The UWS placement deed sets out the respective responsibilities of the UWS and the Commonwealth with respect to work placement students such as Ivan. In particular: (i) The Commonwealth will not, at any time during or as a result of the placement, be taken to be the employer of any student: cl 5.5; (ii) The Commonwealth will not be required to pay any amount to any student in respect of salary, stipend, related on-costs (including superannuation) or other remuneration or provide leave or other employment related entitlements: cl 5.5; (iii) The Commonwealth will co-operate with UWS and the student to achieve the agreed learning objectives while on placement: cl 6.2; (iv) The student is at all times a representative of UWS: cl 7.1; (v) Ivan completed and provided a student placement form (as contained in annexure A to the UWS placement deed, see [41] above), as required for such placements; (vi) Ivan was provided with a letter of offer (see [47] above) as well as subsequent notice of termination (the Commonwealth relies on [50] above) that described his period of engagement as being a student work placement; and (vii) It is critical that none of the Commonwealth, UWS and Ivan (being the parties to relevant relationships) has sought to contest the Commonwealth's characterisation of the engagement as being anything other than a student work placement nor has any of them provided any indication of an understanding that Ivan could validly be considered an "employee or agent" of the Commonwealth during the June-August 2016 period in which he was engaged in the student work placement. 54 The Commonwealth says that the conclusion to be drawn from the decisions in ZG Operations, Personnel Contracting and Pruessner v Caeli Constructions Pty Ltd [2022] FedCFamC2G 206 (Pruessner) is that where the rights and duties of the parties are not found exclusively within a written contract or they are otherwise unclear, it is appropriate in characterising the relationship to consider the totality of the relationship between the parties by reference to the various indicia of employment that have been identified by the authorities: see Personnel Contracting at [61]. See also Pruessner at [44]. The Commonwealth submitted that Ivan's engagement with the Commonwealth was clearly defined by the UWS placement deed and the supporting documentation in evidence as being a student work placement. It says that, even in the absence of being able to locate a student placement deed executed by Ivan, it is apparent that the "engagement" was facilitated and conducted under the UWS placement deed and the parties acted consistently with its provisions. 55 The Commonwealth relied on Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49; (2016) 261 CLR 203 at [76]-[77] (citations inserted into text): The term "agency" is "used in the law to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties" [International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652]. An agent is "a person who is able, by virtue of authority conferred upon him, to create or affect legal rights and duties as between another person, who is called his principal, and third parties" [Petersen v Moloney (1951) 84 CLR 91 at 94]. The relationship of agency is ordinarily created by contract between the principal and agent. Coexisting with the contractual relationship ordinarily is a fiduciary relationship in virtue of which the agent is constrained by a duty of loyalty to exercise the authority conferred by the principal in the interests of the principal, to the exclusion of the interests of the agent. 56 In its submissions in chief, the Commonwealth accepted that, in determining whether a person is an employee, what must be identified is the substance and reality of the totality of the relationship having regard not only to contractual terms but the system operated under them and work practices employed: see Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 (Hollis v Vabu) at [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ); On Call Interpreters & Translators Agency Pty Ltd v Federal Commissioner for Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 On Call Interpreters) at [188]-[193] ((Bromberg J). 57 The Commonwealth submitted that: Cases where there is an express declaration that no employment contract existed are notoriously time consuming for this reason. The cases that have considered whether students on "work experience" placements can be characterised as "employees" illustrate the problem. They all turn on their own facts. In the circumstances of this case it is not reasonable to plead that Ivan was an employee. Further, Mr Kelly's pursuit of this claim will prejudice the Commonwealth in its relationship with UWS as it will be necessary to call UWS' officers as to the nature of the student placement. 58 Senior counsel for the Commonwealth referred to indicia used to distinguish an employee from an independent contractor summarised in ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 (ACE Insurance) at [29] (Perram J) as follows: … a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party "represents" the other; for the benefit of whom does the goodwill in the business inure; how "business-like" is the alleged business of the putative employee - are there systems, manuals and invoices; and so on - the list is neither exhaustive nor short: see Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 per Mason J and 36-37 per Wilson and Dawson JJ; for application see Hollis at [48]-[57] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Sweeney at [30]-[33] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. These indicia were considered by Perram J at length in ACE Insurance at [32]-[96]. 59 The Commonwealth submitted that: As a matter of first principles, it is necessary to conduct an objective assessment of the nature of the relationship that the person has with the entity that takes the benefit of the person's work: Hollis v Vabu at [86] (McHugh J). It took no economic advantage from having Ivan in a student placement. At the heart of the employment relationship is the work-wage bargain, but Ivan was not paid. Those facts create a very high bar to Mr Kelly establishing that Ivan was an agent or employee of the Commonwealth. 60 The Commonwealth submitted that: The direct disability discrimination claim is not reasonably arguable because s 123 of the DD Act cannot operate as pleaded because it only applies to unlawful acts under Divs 1, 2, 2A or 3 of Part 2 of the DD Act. However, the only unlawful act pleaded is under s 15 which is located in Div 1 of Part 2 of the DD Act and it only applies to conduct of "an employer or a person acting or purporting to act on behalf of an employer". Ivan was not an employer nor was he an employee or agent of the Commonwealth for reasons previously given. 61 The Commonwealth says that ASOC [191] is vague and embarrassing because: (a) In relation to s 15(2)(a) of the DD Act, Ivan's conduct cannot fairly be characterised as being a term or condition of employment that the employer afforded Mr Kelly; and (b) In relation to s 15(2)(b), there is no pleading that Ivan denied Mr Kelly opportunities for promotion, training or other benefits. 62 Accordingly, the Commonwealth says that ASOC [181], [182], [185] and [189] and so far as relevant to Ivan's conduct claims, ASOC [191], should be struck out because they are embarrassing or alternatively they fail to disclose a reasonable cause of action as contemplated by r 16.21(d) and (e) of the Federal Court Rules. 63 In its submissions in chief, the Commonwealth also claimed that ASOC [188] and [191] should be struck out insofar as they relate to Ivan's conduct because they lack an essential element of causation as there is no pleading of any material fact that would support the allegation that Ivan's conduct was undertaken "on the grounds of" Mr Kelly's disability. Proposed FASOC [165A] appears to be directed to this issue.

[23]

Mr Kelly's submissions 64 It is Mr Kelly's position that, having regard to the High Court's decisions in ZG Operations and Personnel Consulting, where the rights and duties of the parties are not found exclusively within a written contract, in characterising the relationship it is necessary to conduct a multifactorial analysis of the totality of the parties' contractual rights and obligations, including work practices imposed by the putative employer to ascertain the putative employer's authority and control over the putative employee. 65 Mr Kelly went on to submit that: (a) As the relationship between Ivan and the Commonwealth was not comprehensively committed to a written contract, the Commonwealth cannot call in aid the UWS placement deed to explain the character of the relationship between Ivan and the Commonwealth. Mr Kelly says that to do so would be "unnecessary, and indeed inappropriate", as Ivan was not a party to the UWS placement deed: see Personnel Contracting at [12]; (b) Both Personnel Contracting and ZG Operations dealt with claims on behalf of putative employees seeking payment of statutory entitlements under legislation that required minimum pay and conditions. In contrast, the legal issue in dispute in this matter is the attachment of vicarious liability by reference to the relationship between the Commonwealth and Ivan and Ivan's conduct. The application of the common law definition of "employment" is inapt for the purpose of construing federal discrimination law and caution should be exercised in drawing meaning from the common law as to the proper construction of usages of "employment" in the DD Act and the SD Act. As such, the fact that none of the Commonwealth, UWS or Ivan has sought to contest the characterisation of Ivan's engagement is irrelevant; (c) The SD Act and DD Act are beneficial legislation, and concepts such as "employment" should be interpreted broadly and exclusions from potential liability should be construed narrowly. In Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 (Ryan), a Full Court of the Federal Court of Australia (Griffiths, Rangiah and Perry JJ) affirmed that the statutory definition of "employment" which appeared in s 4 of the DD Act (which is substantively identical to that which appears in s 4 of the SD Act), was broader than how that expression is used in the common law. The definition provided in s 4 of the DD Act (and, by analogy, s 4 of the SD Act) was observed to "extend" the common law meaning of "employment", as so defined in Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at [16] and Personnel Contracting at [41]. In Ryan at [104], it was held that the language of the DD Act was "capable of referring to an employee in the sense of a person paid for performing work on a regular basis at the request and direction of another". It must be emphasised that such observation was not intended to be exhaustive (note usage of "capable of referring to…") and that the condition that a "person [be] paid for performing work" is not essential to a finding of employment status at law: see the authorities referred to below at [72]; (d) Having regard to the matters addressed, the determination of whether or not the Commonwealth is vicariously liable for Ivan's conduct involves a consideration of all of the evidence, including, for example, evidence yet to be filed in support of the material facts which Mr Kelly seeks to plead in FASOC [169A]; and (e) Whether the Commonwealth is vicariously liable for Ivan's conduct under the DD Act and the SD Act is a mixed question of fact and law and there are insufficient facts before the Court to allow resolution of that question on a strike out application. 66 In oral submissions, counsel for Mr Kelly submitted that: (a) Mr Kelly has not had the benefit of seeing what the Commonwealth asserts to have been Ivan's duties since it has not filed a defence; (b) It should be noted that the UWS placement deed is between the Commonwealth and UWS. Ivan is not a party to it and there is no evidence of how he viewed the relationship between him and the Commonwealth. The only evidence of whether or not Ivan was remunerated is the terms of the UWS placement deed. There is no evidence that Ivan ever signed such a deed; (c) Mr Kelly disputes that pursuit of Ivan's conduct claims will require a "mountain of evidence"; rather, it will require some evidence; and (d) If Ivan's conduct claims are struck out leaving only indirect liability claims, Mr Kelly is put at the risk that, if the Court at hearing were to determine that Mr Kelly's discrimination claims are, in fact, direct liability claims, Mr Kelly would be deprived of a cause of action. 67 Counsel for Mr Kelly submitted that it is notable that under the template student placement deed, legal obligations are imposed on the student such that he is not a volunteer. For instance: (a) Under cl 2.1 and 2.2, the student consents to security clearance procedures required by the Commonwealth and must ensure that all information he provides is accurate; (b) Under cl 4, confidentiality obligations are imposed on the student; and (c) Under cl 5, the student assigns to the Commonwealth all "Student IP" in all "inventions models, designs drawings, plans, software, reports, proposals and other materials created or generated by the Student whether alone or with employees or contractors of the Commonwealth that would, if the Student was an employee of the department, vest in the department". Counsel also noted the terms of cll 5.3, 6.1, 6.3 and 9 of the template student placement deed (see [40] above). 68 In relation to the Commonwealth's criticism that Mr Kelly had not pleaded material facts in support of a conclusion that Ivan was an employee of the Commonwealth, Mr Kelly submitted as follows. 69 First, it is unsurprising that Mr Kelly did not plead further material facts in support of the conclusion that Ivan was an employee or agent of the Commonwealth because, when the Commonwealth filed a comprehensive response to Mr Kelly's complaint to the AHRC, it did not say that it was not responsible for Ivan's conduct but instead said that that conduct did not occur. Further, during the period of conferral concerning the ASOC which I directed the parties to undertake, the Commonwealth did not assert that it was not liable for Ivan's conduct because he was a student. Nor did the Commonwealth assert that it did not understand the factual basis for allegations involving Ivan. At no time before the Commonwealth filed its submissions in chief did it request from Mr Kelly any material facts to support the claim that the Commonwealth was vicariously liable for Ivan's conduct. I note, however, that the Commonwealth's response asserted that Mr Kelly was not an employee: see annexure JVW-12 to the affidavit of Jacob White affirmed on 21 February 2020. 70 Second, the fact that a pleading alleges conclusions does not mean it is necessarily bad and a party is not required to incur the expense of providing masses of information in its pleadings; pleadings should focus on "matters really in issue": see State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at [20]-[22] (Drummond J). 71 Third, notwithstanding those matters, Mr Kelly proposes to amend the ASOC to include the material facts set out in FASOC [169A] (see [25(b)] above). Those material facts are capable of supporting a finding that Ivan was an employee of the Commonwealth at common law: see Hollis v Vabu at [24] and ACE Insurance at [29]. 72 Mr Kelly submitted that: Nothing turns on the nomenclature used by parties in determining whether there is an employment relationship. There is no rigid distinction at common law between an employee and a student placement, and that includes cases of unpaid work experience. Mr Kelly relied on Cossich v G Rossetto and Co Pty Ltd (T/as) Sky Cellars [2001] SAIRC 37 (Cossich v G Rossetto) at [32]-[35], Kura Yerlo Council Inc (Fair Workers Compensation)(SA) Pty Ltd v Gerald Clements Leonard [1998] SAWCAT 12 (Kura Yerlo Council v Gerald Clements Leonard) and Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140. Mr Kelly noted that in Cossich v G Rossetto at [33], Magistrate Hardy observed that there "is no good reason why work experience cannot be gained by virtue of employment". 73 Mr Kelly further submitted that decided cases show that the meaning of "employee" under anti-discrimination legislation is broader than the meaning at common law. He noted the inclusive definition of "employment" in s 4(1) of the DD Act and that the definition of "employment" in s 4(1) of the SD Act is relevantly in the same terms. 74 Mr Kelly submitted that the definition of "employment" in the Anti-Discrimination Act 1977 (NSW) was relevantly the same as (b) of the definition of "employment" in s 4(1) of the DD Act and the SD Act. He relied on the decision of the Court of Appeal of New South Wales in Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 (Estate of Russell) at [88] where Spigelman CJ said that "[i]nsofar as persons do 'work' in a context closely analogous to 'employment', the purpose of the legislation would be better served by extending the protection of the Act to such a relationship". See also Lisciandro v Official Trustee in Bankruptcy [1995] FCA 716; (1995) ATPR 41-436 (Lisciandro), which was a decision of Kiefel J (as her Honour then was). Mr Kelly submitted that s 84(2) of the Trade Practices Act 1974 (Cth) was drafted in similar terms to s 123 of the DD Act and s 106 of the SD Act. In Lisciandro at 12, Keifel J said: It may be accepted that the sub-section was intended to extend, and not merely reflect the common law: see Trade Practices Commission v Queensland Aggregates Pty Ltd and Anor (No 3) (1982) 61 FLR 52, 66 and Walplan Pty Ltd v Wallace (1985) 8 FCR 27, 37. It is, as Lockhart J commented in the last mentioned case, designed to attribute to a corporation conduct of others for which the corporation would not necessarily be otherwise responsible. … Whilst the phrase "on behalf of" is not one with a strict legal meaning, as Lockhart J held in Walplan v Wallace (37), there is a limit to how loose the connection can be. It still conveys that something is done "for" the company (Trade Practices Commission v Queensland Aggregates (66)) or something similar to "in the course of the body corporates' affairs or activities". 75 Mr Kelly submitted that, consistent with the authority in Estate of Russell and Lisciandro, it is open to him to argue that, even if Ivan was not an employee at common law, he was an employee or agent of the Commonwealth for the purpose of the DD Act or the SD Act, in that he performed work analogous to an employee and, further, he acted on behalf of the Commonwealth when engaging in conduct in the course of the Commonwealth's affairs. 76 Mr Kelly then submitted that the Court should reject the Commonwealth's argument that the definition of "employee" under the DD Act or the SD Act should be influenced by the terms of s 13 of the Fair Work Act. He says that s 13 of the Fair Work Act is a definitional provision; it provides that certain persons are not to be included in the definition of "national system employee" for the purpose of the Fair Work Act if they are on a vocational placement; and it has no application beyond the Fair Work Act. In any event, the very existence of s 13 of the Fair Work Act makes it clear that there will be cases where a person on a vocational placement will otherwise meet the definition of "employee". The fact that the legislature chose not to include a similar classification in the SD Act or the DD Act arguably runs counter to the contentions of the Commonwealth in this regard. 77 Mr Kelly further submitted that it is not alone a sufficient reason to strike out the direct discrimination claims relating to Ivan's conduct that pursuit of these issues will involve a "considerable amount of time and resources", including evidence from officers of UWS. A pleading may be characterised as "embarrassing" within the meaning of r 16.21(1)(d) of the Federal Court Rules if it contains irrelevant allegations which tend to increase expense: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] (Edmonds J); Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 at [18] (Tamberlin J). However, the allegations involving Ivan's conduct could not be characterised as "irrelevant". Ivan's conduct is central to various causes of action, including causes of action which the respondents implicitly conceded are reasonably arguable because they are not the subject of this strike-out application (for instance, the pleading of indirect disability discrimination at ASOC[170]-[179] and the pleading that the Commonwealth failed to provide reasonable adjustments at ASOC[199]-[207]). The allegations are serious, reasonably arguable and alleged to have resulted in significant losses to Mr Kelly. 78 In relation to the Commonwealth's submissions concerning the references to s 15(2) of the DD Act in ASOC [191], Mr Kelly noted that: (a) He does not press a contravention of s 15(2)(c); (b) The Commonwealth has not made submissions addressing s 15(2)(d); and (c) The reference to s 15(2)(b) in ASOC [191] relates to Mr Kelly's claims in relation to Mr Kowal's conduct, not Ivan's conduct. 79 Relevantly to the claimed contravention of s 15(2)(a) of the DD Act in ASOC [191], at ASOC [189(a)] Mr Kelly pleads that Ivan's conduct occurred "in the terms or conditions of the Applicant's employment" and at ASOC [172], he pleads that Ivan's conduct created a "toxic" work environment. Mr Kelly submitted that the notion of "terms and conditions" is a broad concept: it goes beyond the terms and conditions of the contract to "encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be", relying on Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55 (Lee J). He says that it is open to him to argue that Ivan's conduct occurred in the terms and conditions of Mr Kelly's employment in that it created a hostile work environment in which he was required to work and compromised his entitlement to a safe system of work. 80 In relation to the Commonwealth's complaint that there are no material facts to support the allegation in ASOC [181], Mr Kelly proposes to include FASOC [165A](see [25(a)] above) to support the claim that Ivan's conduct was on the ground of Mr Kelly's disabilities and that the proposed amendment is sufficient for that purpose. He noted that courts recognise that in most cases involving allegations of direct discrimination, it will not be possible for a complainant to adduce direct evidence of the reason for the acts the subject of complaint. Accordingly, the required elements are often established by circumstantial evidence, evidence of intuition, cross-examination and a careful analysis of the reason given by the alleged discriminator for their conduct: see Bennett v Everitt [1988] EOC 92-244 at 77,271.

[24]

The Commonwealth's reply 81 The Commonwealth submitted that it was not in contest that Ivan was a university student on a student placement with the Commonwealth commencing on 15 June 2016. 82 Senior counsel for the Commonwealth submitted that: (a) Clauses 5.5, 6.2, 6.3, 7.1 and 7.2 of the UWS placement deed (set out at [38] above) are inconsistent with an employment relationship; (b) The argument raised by counsel for Mr Kelly that there is no evidence that Ivan was not paid and that the Commonwealth's reliance on the terms of the UWS placement deed is not enough to establish that Ivan was unpaid is a "semantic twist" which should not be accepted. Senior counsel noted that there is no current or proposed pleading by Mr Kelly that Ivan was paid; and (c) Nothing turns on whether or not Ivan thinks he was an employee of the Commonwealth. Ivan was not appointed to a position under the Public Service Act. Section 20 of the Public Service Act provides that the only person who can enter into a contract of employment for the purpose of the statute is the head of the agency. There is no current or proposed pleading by Mr Kelly that Ivan thought he was an employee of the Commonwealth or that he was appointed to a position under the Public Service Act. 83 The Commonwealth reiterated that Ivan's placement was terminated after approximately two months pursuant to the arrangement between UWS and the Commonwealth and he was not remunerated so did not pay tax, a critical indicium of employment, relying on Hollis v Vabu at [68] (McHugh J); Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [39]; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at [9]; Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [47]; Yaraka Holdings Holdings Pty Limited v Ante Giljevic [2006] ACTCA 6; (2006) 149 IR 339 at [41] and [49]; Montreal v Montreal Locomotive Works Ltd [1946] UKPC 44; [1947] 1 DLR 161 at 169; Market Investigations v Minister of Social Security [1969] 2 QB 173 at 184; Lee Ting Sang v Chung Chi-Keung [1990] UKPC 9; (1990) 2 AC 374 at 382; Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 525-526. Mr Kelly's proposed inclusion of FASOC [169A] cannot overcome those fatal facts. 84 Senior counsel submitted that, taken at its highest, Ivan's conduct claims are doomed to fail and it is unreasonable for the Commonwealth to be required to spend time, cost and energy on the claim that Ivan was its employee. 85 The Commonwealth further submitted that: (a) The definitions of "employment" in s 4(1) of the DD Act and the SD Act do not assist Mr Kelly's argument. In accordance with the ejusdem generis rule, the term "employment" must be limited to instances such as the specific matters referred to in the statutory provision: see Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378 and Pearce D and Geddes R, Statutory Interpretation in Australia (8th ed, LexisNexis, 2014) at [4.30]. The examples listed all refer to types of paid work and none of the examples refers to voluntary or vocational placements. Nothing can be gleaned by comparing these definitions with s 13 of the Fair Work Act which expressly excludes "vocational placements" from the ambit of employment because the Fair Work Act was enacted in 2009, approximately 17 years after the DD Act was enacted in 1992 and approximately 25 years after the SD Act was enacted in 1984; (b) Estate of Russell concerned the specific situation of whether police officers, who are not "employees" at common law due to being appointed as "officers" of the State, could be found to be "employees" for the purposes of the Anti-Discrimination Act 1977 (NSW). It would be an impermissible leap to use this case as authority for the proposition that persons on a voluntary student placement should also be considered "employees" for the purposes of s 106 of SD Act or s 123(4) of the DD Act; (c) The respondents do not accept that s 84(2) of the Trade Practices Act is in relevantly similar terms to s 123(2) of the DD Act and s 106 of the SD Act as it contains paragraph (b) which does not appear in those provisions of the DD Act and the SD Act. Section 84(2) provided as follows: Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the person's actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate. (d) Ivan's conduct claims and the proposed FASOC [165A] and [169A] impermissibly seek to widen the categories of person for which a body corporate is liable under s 123(4) of the DD Act and s 106 of the SD Act and should be struck out. 86 The Commonwealth noted that, at FASOC [169A], Mr Kelly seeks to introduce further factors to make good his claim that Ivan was the Commonwealth's employee. The Commonwealth accepts that, on a strike-out application, if a defect can be cured by repleading, the Court should grant leave for that to occur. It submitted, however, that the Court should consider the following matters in relation to the proposed FASOC [169A] which weigh against leave being granted: (a) Putting Mr Kelly's case at its highest and on the basis that Mr Kelly could make good each of the further factors which would be pleaded in FASOC [169A], his claim must fail as Ivan was not appointed to any position under the Public Service Act and none of the proposed indicia will be able to overcome the fact that Ivan was not paid (and therefore did not pay tax), a critical indicia of employment: see Hollis v Vabu at [68]; (b) The further factors proposed to be pleaded in FASOC [169A] apply equally to student placements as they might to an employment relationship so that they are of neutral value in making good Mr Kelly's claims; (c) This is a question of law requiring no further evidence and therefore susceptible of determination on a strike out application; (d) It is notable that s 13 of the Fair Work Act excludes from the definition of "employee" those persons on a "vocational placement"; (e) Pursuing the factors in FASOC [169A] and the indicia of employment discussed in On Call Interpreters at [201]ff and Hollis v Vobu at [48]-[57] by evidence and submissions will involve unnecessary expenditure of time, costs and resources as demonstrated by such cases as Cossich v G Rossetto and Kura Yerlo Council v Gerald Clements Leonard; (f) It is notable that those cases are distinguishable from this case because Cossich v G Rossetto involved work beyond course requirements for approximately a year and Kura Yerlo Council v Gerald Clements Leonard involved low-skilled work that did not require qualifications or supervision; and (g) The direct disability claim is not a central claim in the proceedings. Ivan's conduct remains relevant to the indirect discrimination claim made at ASOC [170] and [172] that the Commonwealth imposed a "requirement practice or condition" that employees who worked in proximity to Ivan (including Mr Kelly, Ms Stone and Mr Kowal) tolerate working in an environment of the kind pleaded at ASOC [24]-[26] and [28]-[30]. Mr Kelly characterises Ivan's conduct as toxic, bullying, harassing, stalking and intimidation. Accordingly, even if ASOC [181], [182], [185], [188] and [189] and the relevant part of ASOC [191] are struck out, Mr Kelly will retain a claim based on Ivan's conduct.

[25]

Consideration 87 On the basis of the information currently before the Court, I view Mr Kelly's prospect of establishing his direct discrimination claims on the basis that Ivan was an "employee" or "agent" of the Commonwealth for whose actions the Commonwealth was vicariously liable as low. However, I will not make orders striking out the claim or summarily dismissing it at this time, which is before the Commonwealth has lodged a defence and before evidence (other than documentary evidence supporting the Commonwealth's interlocutory application) has been put on. 88 The determination of whether a person is an employee or agent of a putative employer involves detailed and often complex issues of fact and law and should rarely be settled on a strike out or summary dismissal application: see Spencer at [25]. In this regard, I note what was said by Kirby P in Wickstead v Browne [1992] 30 NSWCA 272; (1992) 30 NSWLR 1 at 5-6: Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellate courts, including this Court, will usually require evidence to be adduced and a trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold. While this was said before the introduction of r 16.01 of the Federal Court Rules and s 31A of the Federal Court of Australia Act, it maintains its validity: see the decision of the New South Wales Court of Appeal in EA v Diaconu [2020] NSWCA 127; (2020) 102 NSWLR 351 at [66]-[67] and [129] (White JA). 89 The Commonwealth has not been able to locate a student placement deed executed by Ivan. There is no evidence presently before the Court that any of UWS, Ms Stone, Mr Kowal or anyone else from the Commonwealth provided Ivan with a student placement deed for execution. It appears to be common ground that the impact of the High Court's decision in Personnel Contracting and ZG Operations is that, where the rights and duties of parties are not found exclusively within a written contract, in characterising the relationship between parties it is necessary to conduct a multifactorial analysis of the totality of the parties' contractual rights and obligations, including work practices imposed by the putative employer to ascertain the putative employer's authority and control over the putative employee. That exercise is not possible at this time. 90 It is my view that the documents annexed to the affidavits of Ian Bennett affirmed on 28 February 2020 and 8 June 2022 would be admissible in these proceedings, notwithstanding Mr Kelly's reliance on what is said in Personnel Contracting at [12], as part of the matrix of circumstances relating to Ivan's placement with the Commonwealth, albeit that I accept that what is said in the UWS placement deed cannot alone be determinative of whether Ivan is an employee or agent of the Commonwealth because he is not a party to it. 91 In his affidavit dated 28 February 2020, Mr Bennett deposed to the nature of the relationship between Ivan and the Commonwealth (see [30]) above after "having made reasonable enquiries and viewed relevant records of the Respondents". In the absence of Mr Bennett stating what "records" he viewed, his evidence at [30] above appears to rely entirely on the UWS placement deed (including its annexures) and to assume conformity of the relationship between Ivan and the Commonwealth with those documents as the basis of his views. While this is an interlocutory application and those documents may be relevant to the ultimate determination of the nature of the relationship between the Commonwealth and Ivan, they are only part of the factual matrix and do not take into account either any contract that may exist between the Commonwealth and Ivan (should there be such a document) or actual practices in the workplace during the placement. 92 The annexures to Mr Bennett's affidavit affirmed on 8 June 2022 include documents signed by Ivan and correspondence to which he was a party. Those documents are generally consistent with the scheme established by the UWS placement deed even though there was at least one important departure, since the Commonwealth cannot locate a student placement deed signed by Ivan. It is also important that the Learning Contract is not signed and does not necessarily reflect what actions Ivan was directed to undertake and undertook during his placement so as to be able to determine whether he was an employee or had authority to bind the Commonwealth. Having said that, the documents reveal that the clear purpose of the placement was practical education as part of mandatory workplace experience towards a Bachelor of Social Work degree. 93 The documents annexed to Mr Bennett's 8 June 2022 affidavit include: (a) A student placement form containing the information set out at [41] above: It is notable that Ivan did not complete the part of the form relating to the execution of a student placement deed which would suggest that he either had not been given a student placement deed to execute at the time that he appears to have signed a number of documents on 26 May 2016 or that he had chosen not to do so; (b) An Entry Level Check form executed by Ivan indicating that it was for a "social work student" placement, his contacts would be Ms Stone and Mr Kowal and he would be located at Hurstville; (c) A consent to obtain personal information executed by Ivan which stated that his position would be "student placement"; (d) A National Criminal History Check relating to Ivan dated 11 March 2016 which stated that the reason for the check was "Individual, Work Experience in A Health Placement hospital setting (health/vuln"; (e) A Working with Children Check relating to Ivan which stated that it was "valid for unpaid work only" (emphasis added); (f) A Confidential Declaration for Visitors (non APS employees including contract staff) signed by Ivan; (g) Correspondence between Ms Apostolatos of UWS (described as a "Placement Administration Officer") and Ms Stone and between Ms Apostolatos and Ivan, consistent with them fulfilling roles assigned to a "Field Educator" and a social work student doing a work experience placement as contemplated by the Social Work Field Manual which UWS supplied to Ms Stone; (h) The Social Work Field Manual prepared by UWS. While that document is generally consistent with the UWS placement deed, I note that clause 8.9 (set out at [45] above) included that following:  For work related to placement tasks and learning undertaken in an approved agency, the legal responsibility and liability is considered to rest with that agency. (i) Evidence of insurance taken out by UWS with respect to Ivan's placement for the period 7 June 2016 to 25 December 2016 as contemplated by the UWS placement deed and the Social Work Field Manual; (j) An unsigned Student Learning Contract with respect to Ivan's placement at Hurstville. It contains a description of the tasks he is expected to undertake during his placement which do not indicate to me the conferral of authority required to satisfy the definition of "employee" or "agent" with the possible exception of "Participate in phone work in the telecommunication services NUS and TAS to do Crisis work and Unreasonable to Live at Home (UTLAH) work"; (k) A list for "2016 January - June student placements" across DHS social work teams involving 13 universities and 25 students, including Ivan; and (l) An unsigned and undated letter from Mr Kowal to Neil Hall of UWS that Ivan's placement was terminated with immediate effect. 94 I accept the following matters which do not assist Mr Kelly's case: (a) Even if the placement included the features which Mr Kelly proposes to include in the FASOC at [169A], that need not change the characterisation of Ivan's placement as a student placement for the purpose of furthering Ivan's education and not "employment" or "agency"; (b) This case appears to be distinguishable from cases such as Cossich v G Rossetto and Kura Yerlo Council v Gerald Clements Leonard for the reasons given at [86(f)] above. I also note that the applicant in Cossich v G Rossetto did receive payment out of the till and without tax retention; (c) The matters set out at [85(a)] above; (d) While the Full Court in Ryan affirmed that the statutory definition of "employment" which appears in s 4 of the DD Act (which is substantively identical to that which appears in s 4 of the SD Act) is broader than what the expression encompasses in the common law conception of employment having regard to the remedial purposes of the DD Act, that broader concept adopted in Ryan still involved paid work at the direction of the employer: see Ryan at [16]; and (e) In general, being paid for work is an essential part of the bargain indicative of an employment relationship: Hollis v Vabu at [86]. The working with children check referred to at [93(e)] above might suggest that Ivan did not expect to be paid during his placement. 95 However, I will grant Mr Kelly leave to include proposed FASOC [165A] and [169A] in a further amended statement of claim and I will not strike out or summarily dismiss Ivan's conduct claims at ASOC [181], [182], [185], [188] (as it relates to Ivan's conduct), [189] and [191] (as it relates to Ivan's conduct) and [214]-[220] at this time. That is because: (a) As there is currently no evidence of a contractual relationship between the Commonwealth and Ivan, it is necessary to consider workplace practices which in fact occurred. Evidence of those practices which emerges may be relevant to the issue of whether Ivan was an "employee" or "agent" with authority to bind the Commonwealth; (b) Together with evidence which emerges concerning workplace practices during Ivan's placement, the matters set out in FASOC [169A] may also support Mr Kelly's direct discrimination claims; (c) Establishing whether or not Ivan was paid (in light of the decisions in Ryan and Hollis v Vabu) may be pivotal on the issue of whether Ivan might be considered an employee of the Commonwealth. I do not regard Mr Bennett's evidence provided in his affidavit affirmed on 28 February 2020 as sufficient for that purpose for the reasons given at [90] and [91] above; (d) While it is true that a failure to appoint Ivan under the Public Service Act means that he is not a "Commonwealth employee" and may point to him not being an "employee" at common law, it need not be conclusive as to his authority to bind the Commonwealth having regard to the workplace practices which emerge in evidence; and (e) It is likely that much of the Commonwealth's evidence is already on, so that it is unlikely to face an unduly onerous task in collecting relevant evidence. However, even if the Commonwealth is put to effort, the matters in issue are claims under discrimination legislation which is remedial legislation and there may be expected to be a vast difference in the Commonwealth's capacity to obtain relevant evidence and that of a former employee. I do not accept that the fact that the Commonwealth would be put to the trouble of making submissions and providing evidence in support of its defence of the direct discrimination claims, or that the provision of that defence may involve obtaining evidence from UWS are sufficient reasons to strike out or summarily dismiss the direct discrimination claims.

[27]

Pleading of Ms Stone's conduct in the workplace 96 Mr Kelly pleads as follows. (a) In May 2016, Ms Stone told Mr Kelly he could not keep his partners for very long because of his appearance and personality: ASOC [44]; (b) Between May and June 2016 Ms Stone said "I can smell shit today" while looking at Mr Kelly: ASOC [46]; (c) On 10 June 2016, Ms Stone sent Mr Kelly a text message describing Ivan as "straight as HELL" and his conduct as humorous and stating that "I loved the staff in the mental health or lack of unit": ASOC[45]; and (d) Mr Kelly says that he was perplexed, concerned and embarrassed by those things: ASOC [47]. 97 ASOC [48]-[54] contains pleadings concerning 15 images with related text which Ms Stone is said to have sent to Mr Kelly on 21 July 2016 while they were at adjacent desks at the Hurstville Centre during working hours. Mr Kelly pleaded as follows at ASOC [48]-[50]: 48. On 21 July 2016: … b. the Applicant saw and heard Kathleen Stone and [another person] laughing while looking at a screen; c. the Applicant asked Kathleen Stone what they were laughing about; d. in response, Kathleen Stone gestured towards an explicit image on the screen; … h. Kathleen Stone asked the Applicant whether Kathleen Stone could send [the] First Image to the Applicant and subsequently sent the First Image to the Applicant; … l. a few minutes later, and without invitation, Kathleen Stone sent the Applicant a further 14 images (Images). Particulars i. A copy of the Images are available is [sic] inspection at the office of Harmers Workplace Lawyers by appointment 49. The Images: a. contain written text intended to be read with each of the Images; b. are sexually explicit; c. are derogatory in nature; d. contain references to homosexuality and body weight; e. include an image with a reference to conjunctivitis. 50. Upon reviewing the Images: a. the Applicant felt uncomfortable and confused and thought the Images were "dirty"; b. the Applicant did not immediately understand: i. the meaning of the Images, including the written text accompanying the Images; or ii. Kathleen Stone's intention in sending the Images to the Applicant, but wanted to give her the benefit of the doubt in the moment; c. the Applicant asked Kathleen Stone … the meaning of "Alice" which is referred to in one of the Images; d. in response, Kathleen Stone stated, "check the Urban Dictionary", which is a reference to a website with the domain www.urbandictionary.com (Urban Dictionary Website); e. Kathleen Stone stated in relation to one of the Images, being an image with a caption stating "when you stay up eating arse all night" and referring to "pink eye", that she was going to send it to the Applicant when he was absent on sick leave with conjunctivitis; f. the Applicant did not raise objection with Kathleen Stone about the Images in the moment for the reason given in paragraph 50(b) and because the Applicant wanted to give Kathleen Stone the benefit of the doubt. 98 In the premises pleaded at ASOC[154]-[164] and by reason of Ms Stone's conduct pleaded at ASOC [44], [46], [48(b), (d), (h) and (l)] and [50(d) and (e)], Mr Kelly pleads that Ms Stone engaged in unlawful sexual harassment in contravention of s 28B(2) of the SD Act: ASOC [165]. 99 At ASOC [166]-[169], Mr Kelly pleads that, by reason of the same matters (other than ASOC [50(e)]) the Commonwealth is vicariously liable for Ms Stone's conduct under s 28B(1)(a) or s 28B(1)(b) of the SD Act.

[29]

Sections 3 and 46PO of the AHRC Act 101 Before addressing the parties' submissions, it is convenient to set out s 46PO of the AHRC Act (as enacted when the originating application was filed) as relevant: Division 2 - Proceedings in the Federal Court and the Federal Circuit Court 46PO Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Note: … (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (3A) … (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section - see section 43 of the Federal Court of Australia Act 1976. Note 2: … … 102 Under s 3(1) of the AHRC Act: unlawful discrimination means any acts, omissions or practices that are unlawful under: (aa) Part 4 of the Age Discrimination Act 2004; or (a) Division 1, 2, 2A, 3 or 6 of Part 2 of the Disability Discrimination Act 1992; or (b) Part II or IIA of the Racial Discrimination Act 1975; or (c) Part II of the Sex Discrimination Act 1984; and includes any conduct that is an offence under: (ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 51 or 52); or (d) Division 4 of Part 2 of the Disability Discrimination Act 1992 (other than section 42).

[30]

The Commonwealth's submissions 103 The Commonwealth seeks to strike out the supermarket claim on the basis that the Court lacks jurisdiction to hear it because: (a) The supermarket claim was not referred to in Mr Kelly's complaint to the AHRC although it was referred to in one of the annexures, Annexure W which was a medical report by Dr Chee (Mr Kelly's treating psychiatrist) dated 18 March 2018 (Dr Chee's report). That report was not a document authored by Mr Kelly or his lawyers; (b) The Court's jurisdiction is defined by the terms of the complaint to the AHRC and there should be no need to speculate about which part of the annexures to the complaint may or may not be relied upon; (c) The jurisdiction of the Court to determine claims derives from s 46PO(1) of the AHRC Act. Section 46PO(3) of the AHRC Act limits the scope of any application to the Court for "unlawful discrimination"; (d) To fall within s 46PO(3) of the AHRC Act, it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different - not the same or substantially the same - conduct. A new incident, even if it is an incident of the same type as advised to the AHRC, could not have been part of an attempted conciliation conducted by the AHRC: see Dye v Commonwealth Securities Limited [2010] FCA 720 at [105] (Katzmann J); (e) The supermarket claim is not the same or similar to Ms Stone's conduct as referred to in the complaint to the AHRC (and as otherwise pleaded in the ASOC). It is different in that it is said to have occurred outside the workplace and to involve acts of physical aggression, a third party and verbal insults. None of the allegations made in relation to Ms Stone in the complaint to the AHRC had those features; and (f) Such an independent incident cannot be the basis of a claim for aggravated damages where there is no claim for general damages based on it. 104 In the alternative, the Commonwealth seeks to strike out the supermarket claim because the only claim made in relation to it is for aggravated damages. The Commonwealth submitted that: (a) The supermarket incident cannot sustain a claim for aggravated damages only; it is either within jurisdiction under s 46PO(3) or not and it cannot be "tagged onto" a claim to increase damages for alleged discriminatory conduct; (b) Aggravated damages are compensatory in nature and made in addition to (and therefore dependent on) an award of general damages for unlawful conduct; (c) Aggravated damages are available in two circumstances neither of which applies in this case: (i) Where the respondent behaved "high-handedly, maliciously, insultingly or oppressively in committing the primary act of discrimination": see Alexander v Home Office [1988] 2 All ER 118. The events claimed in the supermarket claim occurred approximately a year after the incidents of discrimination alleged at ASOC [44]-[57]; and (ii) Where the respondent conducts proceedings in an improper and unjustifiable manner (such as pursuing an untenable defence or unwarrantedly aggressive cross-examination of an applicant) and this exacerbates the hurt suffered from the primary discrimination: see Elliot v Nanda [2001] FCA 418; (2001) 111 FCR 240 (Elliot) at [180]-[181] (Moore J) approved by Barker J in Clarke v Nationwide News Pty Ltd t/as The Sunday Times [2012] FCA 307; (2012) 201 FCR 389 (Clarke v Nationwide News) at [349]. Mr Kelly has not made any such claim. 105 Further, and in the alternative, the Commonwealth says that the supermarket claim is likely to cause prejudice, embarrassment and delay by being ambiguous - that is, it should not be required to meet a claim that apparently has no basis in authority. Pursuit of the claim will required lengthy submissions as to the nature of aggravated damages and when they may be awarded. By that backdoor method, the Court will be required to determine whether the supermarket claim should be upheld even though any claim based on those events are outside jurisdiction. It does not disclose a reasonable cause of action and should be struck out under r 16.21(1)(d) or (e) of the Federal Court Rules. 106 The Commonwealth notes that [220]-[222] of the statement of claim filed on 13 September 2019 pleaded the supermarket claim as an act of victimisation in contravention of s 42(1) of the DD Act and s 94(1) of the SD Act. However, following correspondence which alerted Mr Kelly to the fact that that claim was outside jurisdiction, Mr Kelly re-pleaded the conduct as supporting a claim for aggravated damages. The Commonwealth says that this is an impermissible attempt to circumvent s 46PO(3) of the AHRC Act and its clear policy objectives.

[31]

Mr Kelly's submissions 107 Mr Kelly says it is reasonably arguable that he is entitled to claim aggravated damages under s 46PO(4) of the AHRC Act because Ms Stone's conduct as pleaded in the supermarket claim caused damage to him in addition to the damage caused by her primary acts of unlawful discrimination pleaded at ASOC [48] and [49] and the Commonwealth's submissions should not be accepted for the following reasons. 108 First, Mr Kelly says that: It is not correct to say that the supermarket claim was not referred to at all in his complaint to the AHRC. He points out that at p 6 of the complaint form, under the heading "What happened", he referred to a bundle of documents attached to the complaint by saying "see attached". Mr Kelly says that the supermarket claim is described in Dr Chee's report which is annexure W to the complaint and it therefore cannot be described as a "new incident". 109 Annexure W is identified at [1.173] of the complaint letter as follows: On 23 April 2018, Harmers provided the Department with a copy of a medical report from Dr Chee and, pursuant to the agreement reached at the Conference, invited the Department to engage in private discussions to explore a resolution. A copy of the medical report of Dr Chee is annexed and marked W. From the complaint letter at [1.169], it appears that the "Conference" referred to was a conference in the Fair Work Commission attended by the parties on 22 January 2018. 110 I note that Dr Chee's report commences 114 pages into the 141 pages comprising the AHRC pack. At pages 121 to 123 of the pack Dr Chee said the following: On 02.05.17, he reported that about nine days prior, he had had a chance meeting with Kathleen and her partner at a local shopping centre, the Marrickville Metro. Taken by surprise, Mr. Kelly tried to be superficially polite to Kathleen, but he reported that Kathleen said "dirty faggot" to him. He reported feelings of panic when he saw Kathleen that day. His sleep deteriorated. His concentration also deteriorated when asked to recount the incident, and at one stage, went on to the wrong lane in the railway station. I also spoke to his ex-partner [name redacted], who was with him at the shopping centre that day, and witnessed parts of the above interaction, as corroborative history. … I made the diagnosis of Adjustment Disorder with Anxious Mood (DSM 5) on the following basis (as written): • A. The development of emotional or·behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s). From June 2016, the social work student started making discriminate three [scil discriminatory] and offensive comments about Jews and homosexuals, and also pursued threatening and aggressive behaviors for instance shouting about, or spitting out his disdain for the Jewish people. On 21.07.16, Kathleen sent the 15 obscene and severely offensive images. • A. These symptoms or behaviors are clinically significant, as evidenced by one or both of the following: · 1 Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation. 2. Significant impairment in social, occupational, or other important areas of functioning. • B. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. Mr. Kelly's symptoms fluctuated according to whether he was retraumatized by having to deal with his employer, its insurer, apparent surveillance, and at one stage, an unplanned interaction with Kathleen at a supermarket. 111 Second, he says that: Even if the supermarket claim did not appear in the complaint to the AHRC (which is not conceded), the point is moot because Mr Kelly does not allege that the supermarket claim amounts to "unlawful discrimination" as defined in s 3 of the AHRC Act. Section 46PO(3) only operates in relation to allegations of "unlawful discrimination". He relies exclusively on the conduct pleaded at ASOC [130]-[131] for the purpose of claiming aggravated damages (see ASOC [253]) and that is not precluded by s 46PO(3). 112 Third, Mr Kelly says that: A Full Court has determined that a Court may award aggravated damages under s 46PO(4) of the AHRC Act: see Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130; (2015) 234 FCR 207 (Mulligan) (Flick, Reeves and Griffiths JJ) at [167], referring to Elliot at FCR 297-298. Mr Kelly points out that the basis of the award of aggravated damages in Elliot was not conduct mentioned in the complaint to the Human Rights and Equal Opportunities Commission (HREOC) and it was conduct that post-dated the filing of the complaint. 113 Accordingly, Mr Kelly says that Mulligan and Elliot are authority for the proposition that conduct which does not appear in a complaint can support a claim for aggravated damages so that, even if the Court finds that the supermarket claim did not appear in the AHRC complaint, he is entitled to rely on that claim for the purpose of seeking aggravated damages. 114 Mr Kelly submitted that, in Elliot at [181] and Clarke v Nationwide News at [347] and [349], the Court recognised that aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done and that, in the context of anti-discrimination law, a wide variety of matters may affect the decision to award aggravated damages in a particular case. He says it is clear that those cases were not intended to provide an exhaustive statement of the circumstances in which it might be appropriate to award aggravated damages, contrary to the Commonwealth's submissions (that is, put briefly, behaving badly in committing the primary act of discrimination or in the respondent's conduct of proceedings). Mr Kelly submitted that the manner in which a respondent maintains a defence is but one example of relevant circumstances. 115 Fourth, Mr Kelly says that the starting point for determining the scope of the Court's power to make orders under s 46PO(4) of the AHRC Act is the plain text, object and purpose of the statutory provision, relying on Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; (1988) 194 CLR 355. One consequence of the principle that a statute should be interpreted in a way that promotes its objects (whether those are expressly stated or not) is that beneficial or remedial legislation (such as the AHRC Act) should generally be given a liberal or generous construction in preference to a technical one: see IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 22 (Dawson and Gaudron JJ) and 26-27 (Toohey J). The beneficial objects of the AHRC Act, the DD Act and the SD Act do not support a constrained or technical approach to the award of aggravated damages. 116 Fifth, Mr Kelly says that: (a) The object of aggravated damages has been described by the High Court as follows: It is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim for damage occasioned by the respondent's conduct where an element of aggravation is involved in that conduct, and not to punish the respondent see the Full Court's decision in Hall v A & A Sheiban Pty Ltd [1989] FCA 65; (1989) 85 ALR 503 (Hall v Sheiban) at 523; (b) As a matter of principle, all conduct subsequent to the wrong may give rise to aggravated damages: the touchstone for an award of aggravated damages is conduct which increases the hurt suffered by the applicant. He submitted that this principle is supported by Mortimer J's observation in Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14 at [1733] that, for the purpose of awarding aggravated damages under s 46PO(4) of the AHRC Act, the aggravation need not come from "conduct directly associated with or following on from the contravening conduct" and could come from "subsequent conduct that has the same effect"; (c) That conduct need not be malicious, but it must be capable of being described as "lacking in bona fides or being improper or unjustifiable", relying on Wotton at [1732] referring to Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497. He says that this is well-established in the area of defamation and false imprisonment: see Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674 at [148] and Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 184; (d) Mr Kelly notes that in Triggell v Pheeney at 512-515, the High Court (Dixon, Williams, Webb and Kitto JJ) accepted that the conduct of the defendant in a defamation case up to and including the trial may be taken into consideration not merely as evidence tending to show retrospectively malice at the time of publication or the intent with which the wrong was done. Mr Kelly says that it may also be taken into consideration as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable. Mr Kelly says that this is the test that should be applied when determining whether to award aggravated damages under s 46PO(4) of the AHRC Act; (e) English authority has informed Australian anti-discrimination jurisprudence including in the area of aggravated damages - see Hall v Sheiban at 524. Mr Kelly submitted that English authority supports the award of aggravated damages by reference to conduct subsequent to the discrimination, where that conduct does not meet the description of being committed as part of the primary act of discrimination or in the conduct of proceedings. Mr Kelly relies on: (i) Duffy v Eastern Health & Social Services Board [1992] IRLR 251 (Duffy) at 256-257 [15] for the proposition that further victimisation of the applicant following the discriminatory treatment may attract an award of aggravated damages. I note that Duffy was a decision of the president of the Fair Employment Tribunal for Northern Ireland which appears to be an administrative body constituted under the Fair Employment (Northern Ireland) Act 1989 (UK); (ii) Prison Service v Johnson [1997] ICR 275 at 287G-H in which the inadequate manner in which the employer investigated the complaints of discrimination was said to justify an award of aggravated damages. I note that this was a decision of the Employment Appeal Tribunal which is a superior court of record pursuant to s 20 of the Employment Appeals Tribunal Act 1996 (UK); (iii) Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 at [16] and [22]. This is also a decision of the Employment Appeal Tribunal in which it was found that compensation for a police whistle-blower's claims should be assessed on the same basis as unlawful discrimination claims and that the claims should be treated as claims for a statutory tort. Counsel for Mr Kelly conceded that such treatment differs from the position in Australia. At [16], Underhill LJ said that the features that may attract an award of aggravated damages in such cases can be classified under three heads being (i) the manner in which the defendant has committed the tort; (ii) the motive for it; and (iii) the defendant's conduct subsequent to the tort but in relation to it. In relation to the third category, Underhill LJ said the following at [22(c)] (emphasis in the original, citations omitted): Subsequent conduct. The practice of awarding aggravated damages for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla and Co. v Walia [2002] IRLR 697 (though N.B. Maurice Kay J's warning at para. 28 of his judgment (p. 702)); and Fletcher (above). But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant's complaint of discrimination seriously: examples of this kind can be found in Armitage, Salmon and British Telecommunications v Reid. A failure to apologise may also come into this category; but whether it is in fact a significantly aggravating feature will depend on the circumstances of the particular case. (For another example, see the very recent decision of this Tribunal (Silber J presiding) in Bungay v Saini (UKEAT/0331/10/CEA).) This basis of awarding aggravated damages is rather different from the other two in as much as it involves reliance on conduct by the defendant other than the acts complained of themselves or the behaviour immediately associated with them. A purist might object that subsequent acts of this kind should be treated as distinct wrongs, but the law has taken a more pragmatic approach. However, tribunals should be aware of the risks of awarding compensation in respect of conduct which has not been properly proved or examined in evidence, and of allowing the scope of the hearing to be disproportionately extended by considering distinct allegations of subsequent misconduct only on the basis that they are said to be relevant to a claim for aggravated damages. (iv) British Telecommunications Plc v Reid [2004] IRLR 327 (BT v Reid). This is a decision of the Court of Appeal in relation to a decision of the Employment Appeal Tribunal. The aggravating conduct was said to be an unjustified disciplinary investigation into the complainant's conduct and prolongation of the complainant's grievance procedure. At [15]-[16], Ward LJ found that if those matters arose out of the act of discrimination and were consequential upon it, then they are relevant to the inquiry into the extent of injury to the feelings of the complainant. They were capable of exacerbating the complainant's wounded feelings arising from the act of discrimination. Mr Kelly also relies on [28], in which Ward LJ found that, in calculating aggravated damages, the fact that the transgressor was not punished and remained in post and was promoted while the grievance procedure was taking place could be taken into account in demonstrating high-handedness of an employer. 117 Mr Kelly submitted that the conduct pleaded at ASOC [130]-[131] is capable of meeting the description of conduct "lacking in bona fides or being improper or unjustifiable", it caused added distress to Mr Kelly further to the distress caused by Ms Stone's primary acts pleaded at ASOC [48] and [49] which are said to amount to sexual harassment under s 28B of the SD Act, and the use of the term "dirty faggot" at the supermarket bears a direct relationship to those primary acts. Further, the supermarket incident demonstrates a lack of remorse for the primary acts; Ms Stone's conduct occurred at a time when Mr Kelly had an unresolved grievance with the Commonwealth and Ms Stone in relation to her conduct and the supermarket incident is capable of being characterised as further victimisation of Mr Kelly.

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The Commonwealth's reply 118 The Commonwealth submitted that Mr Kelly's submission that the supermarket claim was included in his complaint to the AHRC because it was mentioned in Annexure W and is therefore not a "new incident" should be rejected because: (a) The complaint (by which the Commonwealth appears to mean the complaint letter) comprises 34 pages of comprehensive detail about the matters on which Mr Kelly relied. It did not refer to the supermarket incident. It was prepared by his lawyers, not an uninformed complainant who did not have the benefit of legal advice as to the consequences of not including any matter within the complaint itself; (b) If Mr Kelly had wanted to include the supermarket incident in his complaint, it was open to him to amend the complaint at any time before it was terminated but he did not do so; and (c) Primacy must be given to the text of the complaint; that is the clear intent of s 46PO(3) of the AHRC Act. The annexures only support the content of the complaint itself and should not be seen to be part of the complaint. Otherwise, the Court and the respondents would be left in the invidious and unfair position of having to speculate about the scope of the complaint. 119 The Commonwealth submitted that Mr Kelly's submission that an award of aggravated damages can be made for any conduct which increases the hurt suffered by an applicant so long as it is capable of being described as "lacking in bona fides or being improper or unjustifiable" (a phrase from Triggell v Pheeney at 514) is wrong in law because: (a) There must be some direct association between, or an aggravation of, the contravening conduct that is within jurisdiction and the conduct that is alleged to give rise to an award of aggravated damages (emphasis in the submission). Mr Kelly has misapprehended the authorities in that regard; (b) The decision in Wotton does not support Mr Kelly's argument. Justice Mortimer's observation in Wotton at [1731]-[1732] that aggravated damages may be justified where a wrongful act was aggravated by "the manner in which the act was done" is settled law and uncontentious. At [1733], Mortimer J observed that aggravation in some cases may come from subsequent conduct that has the same effect (emphasis in the submissions). However, all of the examples of cases where aggravated damages have been awarded for subsequent conduct have concerned the way in which the defendant conducted its defence of the proceedings against the applicant. The quote from Triggell v Pheeney concerned the way in which a defendant maintained an unsustainable plea in its defence in a defamation case. Mr Kelly is taking the phrase out of context and asking the Court to expand the operation of aggravated damages in an impermissible manner; (c) The examples of circumstances in which aggravated damages may be awarded given by Moore J in Elliot at [181]-[182] all concern the manner in which the respondent defended an extant claim within jurisdiction. Aggravated damages were awarded in Elliot for additional stress and mental anguish resulting from delay in the resolution of the complaint caused by the respondent, including not participating in the proceedings before the HREOC, not an isolated incident such as the supermarket incident; and (d) Authorities on which Mr Kelly relies - being Triggell v Pheeney and Walter v Alltools Ltd (1944) 171 LT 371 - are torts cases where the plaintiff was not constrained by any statutory provision like s 46PO(3) of the AHRC Act. 120 The Commonwealth says that Mr Kelly's submission that the supermarket incident bears a direct relationship to Ms Stone's conduct pleaded at ASOC [48] and [49] as contravening the SD Act is wrong. The Commonwealth says that the conduct complained of was the sending of images to Mr Kelly's mobile phone while he and Ms Stone were at work during working hours on 21 July 2016; some of the images contained sexual references, not homophobic slurs. The images were generalised and did not target Mr Kelly in any way. There is no pleading that there was animosity on Ms Stone's part at the time the images were sent; Mr Kelly only complained about the images on 4 August 2016. In contrast, the supermarket claim is an allegation of a verbal homophobic insult made by Ms Stone directed at Mr Kelly personally outside work hours in a supermarket nine months later, in March 2017. There is no similarity in the two types of conduct. Properly characterised, they are two separate incidents and a link cannot be forged by an alleged demonstration of lack of remorse. Further, it is not correct to say that Mr Kelly's grievance was unresolved at the time of the supermarket incident. The Commonwealth's enquiries, assessment and resolution of Mr Kelly's allegations about the images was concluded on 27 September 2016, almost six months before the supermarket incident. 121 The Commonwealth says that the conduct alleged in the supermarket claim cannot be characterised as "further" victimisation of Mr Kelly as the conduct pleaded as "victimisation" at ASOC [212] does not involve any conduct of Ms Stone.

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Consideration 122 In my view, the supermarket claim at ASOC [130]-[131] and [251] should be left to a trial judge to determine and therefore it should not be struck out or summarily dismissed. 123 It may be that the better view is that the supermarket claim was not part of Mr Kelly's complaint to the AHRC notwithstanding reference to it in Dr Chee's report included as Annexure W to the AHRC pack and the question in the complaint form "What happened" being answered "see attached". In saying that I have regard to the terms of the AHRC's decision dated 10 July 2019 which appears to identify the "complaint" as being the documents at "Attachment B". As noted at [4] above, the documents comprised in Annexure B were the documents which appear to have been endorsed by the AHRC as Annexure B-1, Annexure B-2 and Annexure B-3, being respectively the complaint form and the complaint letter both dated 7 November 2018 and Mr Kelly's email to Mr Kowal dated 5 August 2016. 124 I note that, the next heading of the form after "What happened" was "Supporting documents" which advised: Please attach copies of any documents that support the claims in your complaint. For example - letters, separation certificate, doctors certificate. If you cannot do this, please tell us about the documents or other information and how this information can be obtained. 125 Arguably, this paragraph put complainants and their lawyers on notice of how attachments in the nature of a consulting psychiatrist's report would be regarded. There is a strong argument that the approach adopted by the AHRC in treating the documents set out in Annexure B as the complaint is correct and Dr Chee's report should appropriately be treated as no more than a supporting document. 126 Having said that, I note that it is arguable that the Commonwealth was on notice of the content of Dr Chee's report from at least 23 April 2018, because Dr Chee's report appears to have been provided to the Commonwealth for the purpose of settlement negotiations following a Fair Work Commission conference in January 2018: see [109] above. It is true that the complaint letter is a comprehensive document prepared by lawyers who practise in workplace law and the parties to a complaint should not be required to speculate about what matters they must address, but the following matters must also be taken into account: (a) The AHRC Act is remedial legislation; and (b) The general nature of the supermarket incident and its claimed impact on Mr Kelly (see [110] above) was before the Commonwealth well before Mr Kelly's complaint was lodged with the AHRC. The information in Dr Chee's report concerning the supermarket incident and its claimed impact on Mr Kelly was therefore available to be taken into account in any conciliation which might have taken place. Accordingly, that policy object of s 46PO(3) would not be frustrated if that information in Dr Chee's report were to be considered to be part of the complaint or as an aggravation of the claims made at ASOC [46] and [48]-[50]. 127 Mr Kelly correctly points out that aggravated damages have been found to be available under s 46PO(4) of the AHRC Act on the basis of conduct not included in a complaint notwithstanding the terms of s 46PO(3): see Elliot at [180]-[181] approved by Barker J in Clarke v Nationwide News at [349] 128 The Commonwealth appears to be correct that the grievance procedure on which Mr Kelly relied had been completed by the time of the supermarket incident. However, in seeking to establish that the supermarket incident is different in nature from the claims otherwise made by Mr Kelly about Ms Stone's conduct, the Commonwealth appears to rely only on the "Images" pleaded at ASOC [48] and to ignore the claim made at ASOC [46]: see [96] and [97] above. That may derive from the fact that the victimisation claim made at [220]-[222] of the statement of claim filed on 13 September 2019 relied only on ASOC [48]. 129 In my view, there are arguable features of the conduct claimed at ASOC [46] which are similar to the conduct claimed at ASOC [130c] in that the complaint letter indicated that Mr Kelly understood that comment to be a reference to his homosexuality, it might be taken to indicate that homosexuality was dirty because of the reference to "shit" and it was made By Ms Stone in front of other people. Ms Stone's conduct pleaded at ASOC [48]-[50] similarly involved: (a) Words (albeit connected with images) that implied that homosexuality was dirty when their meaning was fully comprehended; and (b) Ms Stone involving others in the conduct; her partner in the supermarket incident and another employee in the images incident (see ASOC [48b]). 130 While ASOC [46] and [48]-[50] involved workplace incidents and the supermarket incident appears to have resulted from Mr Kelly and Ms Stone being in the same place outside the workplace at the same time by accident, in my view it is open to a Court to accept that, after the events described in ASOC [46] and [48]-[50], an interaction such as the supermarket incident aggravated the hurt and distress claimed by Mr Kelly in relation to the conduct pleaded at ASOC [46] and [48]-[50]. 131 While I accept that there may be limitations on claims for aggravated damages under s 46PO(4) of the AHRC Act which do not arise in claims for aggravated damages in respect of common law torts such as defamation and wrongful imprisonment, and I do not accept Mr Kelly's claim that the decisions of Australian courts he cited support his contention that current case law extends beyond aggravation as a result of a respondent behaving badly in committing the primary acts of discrimination or in the respondent's conduct of proceedings, this is an area in which the law may well develop and it is appropriate to exercise caution in relation to striking out such a claim lest the development of the law in this area be stifled.

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BREACH OF ENTERPRISE AGREEMENT CLAIMS 132 There are two relevant enterprise agreements as follows: (a) The Department of Human Services Agreement 2011-2014 [2011] FWAA 9070 (first enterprise agreement), which applied between 27 December 2011 and 1 November 2017; and (b) The Department of Human Services Agreement 2017-2020 [2017] FWAA 5579 (second enterprise agreement) which applied between 2 November 2017 and 4 October 2018 (when Mr Kelly's employment terminated). 133 In issue is the meaning of cll G9.8 and G9.11 of the second enterprise agreement. Clause G9 of the first and second enterprise agreements were generally (but not perfectly) in the same terms. Set out below is, as relevant, cl G9 of the first enterprise agreement with any differences to the second enterprise agreement being identified in square brackets as follows: G9 ACCESSING PERSONAL/CARER'S LEAVE G9.1 Leave accrued under clause G7 may be used as "personal leave" where an employee is unfit for duty, and/or where an employee needs to attend medical procedures and/or appointments. … G9.4 Employees must advise an appropriate person, as determined for their workplace, as soon as reasonably practicable of an absence or their intention to be absent. Generally, this should be prior to the employee's scheduled start time wherever possible, unless there are circumstances beyond the employee's control. G9.5 The Secretary [Managers] will advise employees of the reporting arrangements for their workplace, including identifying the "appropriate person" for that workplace. G9.6 An employee may access up to five days of paid personal/carer's leave (subject to available leave credits) in a calendar year without providing suitable evidence to support the absence. These five days make up part of an employee's 18 days accrual. G9. 7 After an employee has accessed five days personal/carer's leave without suitable evidence, in accordance with subclause G9.6, the Secretary may require an employee to provide suitable evidence to support all further paid personal/carer's leave in that calendar year. A requirement to provide suitable evidence will not be made retrospectively. G9.8 Where the Secretary has required an employee to provide suitable evidence to support absences from the workplace, and that evidence cannot be provided to support absences, the Secretary may deem the leave to be an unauthorised absence. G9.9 The Secretary may grant unpaid personal/carer's leave where an employee does not have sufficient personal/carer's leave credits to access paid leave, or where an employee has been required to provide suitable evidence to support their absence and suitable evidence was not provided. [For the avoidance of doubt, this clause does not restrict an employee's ability to access any entitlement to unpaid personal/carer's leave they may have under legislation.] G9.10 Personal/carer's leave without pay does not count as service for the purpose of accruing annual or personal/carer's leave. G9.11 In this clause G9, suitable evidence means: (a) evidence from a registered health practitioner; (b) a statutory declaration in appropriate circumstances, such as where it is not reasonably practicable for an employee to obtain evidence from a registered health practitioner; or (c) ... G9.12 The Secretary may [will] grant available paid personal leave to an employee who provides suitable evidence that they are medically unfit for one day or more while on unpaid maternity leave, annual leave, purchased leave, flex leave or long service leave. Annual leave, purchased leave, flex leave and long service leave will be re-credited to the extent of the period of personal leave granted. 134 The Commonwealth seeks to strike out ASOC [233]-[238] which provides as follows: Failure to provide unpaid personal leave 233. Between 25 September 2017 and 31 December 2017, and throughout 2018, the Applicant provided the First Respondent with: a. Various medical certificates from registered health practitioners to support his absence from the workplace; b. Permission to contact his treating health practitioners to discuss his illness; and thereby provided the First Respondent with suitable evidence for the purpose of clause G9.11 in the Second Enterprise Agreement. 234. Notwithstanding the matters in the immediately preceding paragraph the Secretary deemed the Applicant's absence from the workplace as unauthorised between 25 September 2017 and 31 December 2017, and throughout 2018. 235. In the premises, the First Respondent contravened clause G9.8 of the Second Enterprise Agreement in respect of each day of allegedly unauthorised absence. 236. In contravening clause G9.8 of the Second Agreement, the First Respondent contravened section 50 of the FW Act. 237. Section 50 of the FW Act is a civil remedy provision within the meaning of section 539(1) of the FW Act. 238. The Applicant has standing to seek a pecuniary penalty order from the First Respondent in respect of each contravention of section 50 of the FW Act.

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The Commonwealth's submissions 135 The Commonwealth says that it is not in contention that it had determined that Mr Kelly had been on unauthorised absence between 25 September 2017 and 28 August 2018. On 14 August 2018, it determined, retrospectively, to provide Mr Kelly with unpaid personal leave for that whole period. It says the allegation that this period was not treated as an authorised absence is untenable and there was no breach of cl G9.8 of the second enterprise agreement. However, if the Court were to find that there was a breach: (a) It existed only until 25 May 2018; and (b) The Court would not consider it appropriate to impose a pecuniary penalty in the exercise of its discretion under s 546 of the Fair Work Act nor to award the penalty to Mr Kelly, with the result that ASOC [233] to [238] should be struck out. 136 The Commonwealth submitted that: (a) It is immediately apparent that cl G9.8 of the enterprise agreements provides the Secretary with a discretion to deem leave to be an unauthorised absence in a particular situation, that is, where an employee has been required to provide suitable evidence to support absences from the workplace and that evidence is not provided; and (b) Clause G9.9 of the second enterprise agreement reinforces that unpaid leave is not guaranteed but, rather, it is a discretionary decision that unpaid leave may be granted by the Secretary. 137 The Commonwealth relies on a letter dated 17 May 2017 from the acting social work manager to Mr Kelly (annexure I in the pack provided to the AHRC) (17 May2017 direction letter). It says that, by that letter, the Commonwealth issued Mr Kelly with a direction to submit medical evidence in support of any future absences on unpaid personal leave, such evidence to include: (a) any diagnosed medical condition preventing him from attending work; (b) the expected length of time he will be unfit for work; (c) any treatment plan being implemented; and (d) any recommended adjustment or support that may assist in facilitating his return to work. 138 The Commonwealth accepts that, on 29 or 30 May 2017, Mr Kelly provided the Commonwealth with a medical certificate from Dr Chee (annexure J in the pack provided to the AHRC). It stated that Mr Kelly was seeking treatment from Dr Chee and that he would be unfit for work for a further three months. The Commonwealth observed that the medical certificate did not contain a diagnosis of Mr Kelly's medical condition. The Commonwealth says that, as a consequence, Mr Kelly was not granted unpaid personal leave and his absence from work was deemed to be unauthorised, relying on letters from Rhonda Hawkesford on behalf of the Commonwealth to Mr Kelly identified at ASOC [147], being letters: (a) dated 26 June 2017, advising that Mr Kelly's absence between 19 and 23 June 2017 had been unauthorised; (b) dated 29 September 2017, among other things, with respect to Mr Kelly's failure to provide "a higher level of evidence" regarding his medical condition; and (c) dated 14 November and 8 December 2017, advising that medical certificates provided by Dr Chee dated 14 and 24 November 2017 respectively did not provide the "higher level of medical evidence" sought in the 17 May 2017 direction letter. 139 The Commonwealth says that it was not until approximately one year later, on 25 May 2018, that Mr Kelly provided Dr Chee's report which addressed the information requested in the 17 May 2017 direction letter. The Commonwealth submitted that: As a result of being provided with Dr Chee's report, it wrote to Mr Kelly on 14 August 2018 informing him of its decision to treat his absence from the workplace up to and including 28 August 2018 (but not thereafter) as an authorised absence on unpaid personal leave (see annexure X in the pack provided to the AHRC on 7 November 2018). The Commonwealth did not thereafter in fact rely on the period of absence from 27 September 2017 to 28 August 2018 for any purpose, including the termination of Mr Kelly's employment. There were no adverse consequences in terms of disciplinary action or financial loss. 140 The Commonwealth says that: Even if there had been a breach of cl G9.8 for the period prior to the date on which the retrospective determination was made (14 August 2018) (which it denies), the breach was remedied and Mr Kelly has suffered no economic loss nor any other loss or damage. Nonetheless, Mr Kelly seeks the imposition of a pecuniary penalty and consequential orders that the penalty be paid to him under s 546(1) and (3) respectively of the Fair Work Act (ASOC [253g]) and [253h]). 141 The Commonwealth notes that s 546(1) of the Fair Work Act provides that the Federal Court may, on application, order a person to pay a pecuniary penalty that the Court considers is appropriate if the Court is satisfied that the person has contravened a civil remedy provision (emphasis in the submission). It submits that, if there was a contravention (which is denied), it was remedied. It says that, as Mr Kelly suffered no loss, there would be no proper basis for the Court to exercise its discretion to impose a penalty. The Commonwealth has not been able to identify any cases in which breaches of this kind have resulted in awards for non-economic loss. 142 In further support of that submission, the Commonwealth says that as and from its receipt of Dr Chee's report on 25 May 2018, Mr Kelly could not be considered to be "absent" from work because he was never returning. The Commonwealth notes that Dr Chee's report said (among other things) that: (a) Mr Kelly was incapable of working in any capacity; and (b) Dr Chee believed that Mr Kelly would likely never be capable of working in any department within the Australian Public Service, including DHS. 143 The Commonwealth says that absence from work is not an unending period. In the context of employment law in general and the enterprise agreements in particular, the term "absence from work must" be construed as an episode, phase or interval after which there will be a resumption of work. It says that, by submitting Dr Chee's report, Mr Kelly had effectively advised his employer that the contract of employment had been frustrated or repudiated. 144 Accordingly, Dr Chee's report did not support the exercise of discretion under cl G9.9 to allow Mr Kelly to be on an authorised absence. The Commonwealth relied on the report for the opposite purpose: to treat all time away from work after 28 August 2018 as unauthorised. The grant of unpaid leave up to 28 August 2018 was a benefit to Mr Kelly, not a loss. 145 The Commonwealth notes that, in its letter dated 14 August 2018, it asked Mr Kelly whether he envisaged being able to return to work by 24 September 2018 and to provide his answer to that question by 21 August 2018. It says that Mr Kelly did not respond until 7 September 2018 at which time he advised that he did not anticipate being able to return to his position on or before 24 September 2018. The Commonwealth says that it is clear that cll G9.8 and 9.9 of the second enterprise agreement were not enlivened after 25 May 2018 (the date Dr Chee's report was provided to it) and relies on the following: (a) Mr Kelly provided no further medical evidence to the Commonwealth; (b) On 10 September 2018, the Commonwealth determined that it would not grant unauthorised leave after 28 August 2018: see annexure Z in the pack lodged with the AHRC; (c) On 25 September 2018, the Commonwealth determined that the period between 29 August 2018 to 17 September 2018 was unauthorised absence and gave Mr Kelly an opportunity to provide reasons why his employment should not be terminated by providing submissions by 2 October 2018: see annexure AA to the pack lodged with the AHRC; and (d) Mr Kelly did not provide submissions and, on 4 October 2018, the Commonwealth terminated his employment: see annexure AB to the pack lodged with the AHRC.

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Mr Kelly's submissions 146 Mr Kelly noted that a declaration that an employee's leave is unauthorised has significant consequences for the employee including: (a) As the Commonwealth advised Mr Kelly in Ms Bacusi's letter to Mr Kelly dated 14 August 2018, where the employee has been absent from duty without authorisation for a period of five days, the Commonwealth may consider termination under s 29(3)(c) of the Public Service Act on the ground of non-performance of duties; (b) Annual leave does not accrue during unauthorised leave: cl G2.3 of the first and second enterprise agreements; (c) Unauthorised absences defer the accrual of long service leave under cl G17.3 of the first enterprise agreement. I note that there does not appear to be an equivalent provision in the second enterprise agreement; and (d) Unauthorised absences will not count as service for any purpose under cl G20.1 of the first enterprise agreement. I note that G35 of the second enterprise agreement is to the same effect. 147 Mr Kelly submits that he found correspondence from the Commonwealth on and after 17 May 2017 confusing and vague but he nonetheless provided evidence to the best of his ability (ASOC 146], [148] and [149]). Despite this, his absences were deemed to be unauthorised. 148 Mr Kelly rejects the Commonwealth's submission that it was not until 25 May 2018 that the requirement in the 17 May 2017 direction letter was answered. He says he provided the Commonwealth with various medical evidence between 17 May 2017 and 25 May 2018, including evidence of his diagnosis on 7 September 2017. Somewhat unhelpfully, Mr Kelly refers to a list of documents set out on pages 38-39 of the affidavit affirmed by Jacob White on 21 February 2020. The list is appended to a document labelled "Review of Action" dated 19 December 2017 which is identified as annexure JVW-5 but the attachments listed are not included in annexure JVW-5. I understand Mr Kelly to be referring to the following documents which are summarised in the Review of Action as follows: 10. On 30 May 2017, Mr Kelly emailed Mr Heyburgh providing him with a medical certificate from Dr Chee, Consultant Psychiatrist, dated 30 May 2017. The medical certificate stated 'he has been ill and unfit to work throughout this period [3 March 2017 up to 30 May 2017]. He remains unfit to work for the next 3 months. (Attachment G); … 15. On 15 September 2017, Mr Kelly emailed Ms Hawkesford attaching a medical certificate from Dr Alexandrou dated 7 September 2017 to advise he was not fit to work from 30 August 2017 to 22 September 2017. (Attachment L) … 17. On 16 October 2017, Mr Kelly emailed Ms Hawkesford providing a medical certificate from Dr Alexandrou dated 15 October 2017, stating he was unfit to attend work retrospectively from 25 September 2017 until 30 October 2017. (Attachment N) 18. On 14 November 2017, Mr Kelly emailed Ms Hawkesford providing a medical certificate from Dr Chee dated 14 November 2017, advising 'he currently remains unfit to work and will remain unfit for 3 months'. (Attachment O) … 20. On 22 November 2017, Mr Kelly emailed Ms Hawkesford providing a medical evidence from Ms Lee Dodsworth, Psychologist, Thrive Psychology dated 22 November 2017. The evidence provided that Mr Kelly had attended the practice 'following referral made by his medical professional dated 15 October 2017. Further sessions have been scheduled for him to address his presenting psychological problems'. (Attachment Q) 21. On 29 November 2017, Mr Kelly emailed Ms Hawkesford providing medical evidence from Dr Chee dated 24 November 2017. The medical certificate stated 'Mr Kelly is unfit to work from 29 October 2017 to 15 November 2017 inclusive due to illness'. (Attachment R) … 23. On 17 December 2017, Mr Kelly emailed Ms Hawkesford with a letter outlining his concerns. Mr Kelly stated • 'A diagnosis was provided, most recently on and 7 Sept 2107 and again on 15 Oct 2017'; [sic] • A prognosis for the period 29 Oct-14 Feb 2018; and • Verification that I am seeing Dr Chee for 'ongoing treatment' (med cert dated 15 Oct). (Attachment T) 149 Mr Kelly says that, contrary to the Commonwealth's submissions, it did not (by Ms Bacusi's letter dated 14 August 2018) inform Mr Kelly that it had "determined to retrospectively provide the Applicant with unpaid personal leave for the whole period [from 25 September 2017 to 28 August 2018]". Rather, the letter advised that: (a) Mr Kelly would be provided with unpaid personal leave from 14 August 2018 until 28 August 2018; and (b) In relation to his absences in 2017 and 2018 which the Commonwealth had advised Mr Kelly were unauthorised, "the department does not presently intend to rely on those unauthorised absences". 150 Mr Kelly says that it was not open to the Commonwealth to declare his absences from 25 September 2017 as unauthorised because he did provide "suitable evidence" as requested. He says that, in declaring his absence as unauthorised, the Commonwealth contravened cl G9.8 of the enterprise agreements and consequently s 50 of the Fair Work Act. He says that the contraventions caused him hurt, humiliation and distress and exacerbation of injury for which he seeks compensation and the imposition of civil penalties (see ASOC [252] and [253b and g]. In oral submissions, counsel for Mr Kelly acknowledged that Mr Kelly's legal advisors had also not been able to find cases where courts have awarded compensation for "straight breach of an award". Counsel sought to rely, by analogy, on the decision in Clarke v Elite Systems Australia Pty Ltd (No 2) [2018] FCCA 2864 which did not deal with breach of an enterprise bargaining agreement, but where the court awarded damages for distress, hurt and humiliation for breach of ss 90 and 117 of the Fair Work Act. 151 Mr Kelly says that the Commonwealth's submission that, on 14 May 2018, it retrospectively authorised his previously unauthorised absences should be rejected as a matter of fact because: (a) The letter went no further than to notify Mr Kelly of a present intention. It did not inform him that the Commonwealth would never rely upon those absences or that it deemed those absences to be authorised retrospectively. Indeed, the letter continued to refer to the absences as "unauthorised"; and (b) In any event, even if, on 14 August 2018, the Commonwealth had purported to declare Mr Kelly's absences in 2017 and 2018 to be authorised, steps taken to remedy a contravention might be relevant to the question of loss, but it does not have the effect of retrospectively curing the contravention of cl G9.8 of the enterprise agreements and s 50 of the Fair Work Act. 152 Mr Kelly also says that the Commonwealth's submission that he had suffered no loss as a consequence of the contraventions pleaded should be rejected, but in any event the absence of loss or damage would not prevent Mr Kelly from being able to maintain his claim: (a) His pleaded claims to have suffered hurt, humiliation, distress and exacerbation of injury as a consequence of the contraventions will be supported by medical evidence at trial. In light of the consequences of a declaration of unauthorised absence, it would be unsurprising that he might suffer distress as a result of the contraventions. Such non-economic losses are compensable under s 545 of the Fair Work Act; and (b) Even if no loss had been suffered (which is not conceded), the lack of loss or damage does not necessarily mean that no pecuniary penalty would be awarded. Loss or damage is but one factor that Courts consider when fixing penalties in an industrial context. Other factors which must be considered include the objective circumstances and seriousness of the conduct, the nature and extent of the contraventions and the need for deterrence. This Court cannot, on a strikeout application, determine whether or not it would be appropriate to award civil penalties in respect of the alleged contravention. 153 Mr Kelly says that the Court should reject the Commonwealth's argument that, on 25 May 2018, Mr Kelly effectively advised the Commonwealth that his contract of employment had been frustrated or repudiated because Dr Chee's report demonstrated that he was permanently unfit to work in any capacity in the public service (rather than supporting authorisation of his being "absent" from work) on the following bases. 154 First, Mr Kelly says that the notion of "absence" should not be construed narrowly as being limited to an absence which is temporary in nature or where it is foreseeable that the employee will return to the workplace as the Commonwealth contends (see [143] above). He says that the notion of an "unauthorised absence" is found in s 22 of the Fair Work Act as follows: 22 Meanings of service and continuous service General meaning (1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2). (2) The following periods do not count as service: (a) any period of unauthorised absence; (b) any period of unpaid leave or unpaid authorised absence, other than: (i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or (ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or (iii) a period of leave or absence of a kind prescribed by the regulations; (c) any other period of a kind prescribed by the regulations. (3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service. (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. … 155 Mr Kelly says that it is appropriate to take into account the explanation of the meaning of the phrase "unauthorised absence" in s 22 of the Fair Work Act found in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [105] as follows: Subclause 22(2) identifies the periods that are excluded and therefore do not count as service. They are: • any period of unauthorised absence (e.g., when an employee has abandoned his or her employment, is engaging in industrial action or is otherwise absent from work for a period contrary to a direction made by an employer) (paragraph 22(2)(a)); • any period of unpaid leave (e.g., unpaid parental leave or unpaid carer's leave) or unpaid authorised absence other than a period when the employee is absent from work on community service leave, a period when an employee is stood down from work (under Part 3-5 of the Bill or under an applicable enterprise agreement or contract of employment) or a period or absence prescribed by the regulations (paragraph 22(2)(b)). Mr Kelly says that this confirms that the meaning of the phrase "unauthorised absence" was intended to extend to circumstances where it was not foreseeable that the employee would return to work, including the situation where "an employee has abandoned his or her employment". 156 Mr Kelly contends that it is appropriate to assume that the enterprise agreements were intended to operate harmoniously with the Fair Work Act and apply the same meaning of "unauthorised absence". The notion of an "absence" from work for the purposes of cl G9.8 should be taken to denote a period of not being at work in circumstances where there would otherwise be an expectation that the employee attend work. Mr Kelly relies on Jake Johansen v J H Lever & Associates Pty Ltd [2019] FWC 2766 at [83] where Deputy President Anderson explained: In the context of section 22(2)(b) [of the Fair Work Act] the word "absence" cannot be decoupled from the word "authorised". The statutory test is whether there is an "authorised absence" and whether that authorised absence was unpaid. The word "authorised" provides context to the meaning of "absence". In this context "absence" is not simply a neutral concept of not being at work on a given day or for a given period. It is a particular type of absence; absence in circumstances where authorisation is given. This context requires a precondition: an expectation if not an obligation on one party to work from which one is permitted by the other to be absent from. It is not a reasonable textual interpretation of section 22 for days an employee is not expected or required (and is not rostered) to be excluded periods (and deducted from the length of their continuous service) if they otherwise work all of the days they are expected, required and rostered. One only needs to consider the consequences for casual employees in 7-day trading businesses who are not ordinarily rostered to work every day. Deducting from their service days in a week when not ordinarily required and thus not rostered is not a proper application of the term "excluded period" in section 22. 157 Mr Kelly submitted that in Dr Chee's report, his treating doctor opined that he was, at present, unfit to return to work. Therefore, the report is capable of supporting Mr Kelly's "absence" from work, in the sense contemplated by cl G9.8 of the enterprise agreements. The fact that the treating doctor further opined that it was unlikely that Mr Kelly would be able to return to work does not have the effect that the report is incapable of supporting his absence. 158 Second, Mr Kelly submitted that whether his employment had been frustrated or repudiated depends upon an objective consideration of all of the circumstances including: (a) The opinion expressed in Dr Chee's report was that Mr Kelly "will never be likely to be capable of working in his previous department due to the trauma he received and subsequent handling of his case". However, Dr Chee's view did not preclude the possibility of him returning to work for the Commonwealth if Mr Kelly had been given the correct support; (b) At the time of Dr Chee's report, Mr Kelly continued to deal with the Commonwealth as his employer, including in correspondence, participating in a conciliation process and objecting to the Commonwealth's proposal to terminate his employment. That conduct is inconsistent with a claim that Mr Kelly repudiated the contract of employment; and (c) Perhaps most importantly, it is Mr Kelly's case that the Commonwealth's conduct brought about his unfitness to work. If Mr Kelly's unfitness to work had the effect of bringing the employment contract to an end, it was not termination at Mr Kelly's initiative but rather at the Commonwealth's initiative. 159 The Commonwealth's argument that Mr Kelly was not "absent" from work from 25 May 2018 is inconsistent with the position the Commonwealth took at the time in correspondence with Mr Kelly: see the 14 August 2018 letter which indicates that the Commonwealth regarded Mr Kelly as having unpaid personal leave between 14 and 28 August 2018 which indicates that the Commonwealth regarded Mr Kelly as being then "absent" from work for the express purpose of the second enterprise agreement. Further, even if there had been repudiation by Mr Kelly (which he does not accept), the repudiation was not accepted by the Commonwealth which continued to engage with Mr Kelly as an employee after 25 May 2018, as demonstrated by the letter dated 14 August 2018. A repudiation does not terminate the employment contract unless it is accepted by the employer: see Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435. Accordingly, Mr Kelly continued to be the Commonwealth's employee after 25 May 2018 and his non-attendance at work must be regarded as an "absence" for the purposes of cl G9.6 of the enterprise agreement.

[37]

The Commonwealth's submissions in reply 160 The Commonwealth submitted that: (a) The ASOC alleges breach of the enterprise agreements from 25 September 2017 throughout 2018; this has to be broken down into two periods; (b) The first period is 25 September 2017 to 28 August 2018. The Commonwealth treated the first period as retrospectively authorised following receipt of Dr Chee's report, following Mr Kelly's confirmation that it may be considered in assessing suitable evidence supporting his absences from the workplace; and (c) The second period was from 29 August 2018 to 17 September 2018. The Commonwealth relied on the second period alone to terminate Mr Kelly's employment: see annexures Z, AA and AB in the AHRC pack. 161 The Commonwealth pointed out that cl G20 of the first enterprise agreement provides as follows: G20.1 Where an employee is absent for any period without authority, the absence will not count as service for any purpose, and will not attract payment of salary. I note that cl G35 of the second enterprise agreement is in the same terms. 162 The Commonwealth submitted that: (a) Mr Kelly submissions concerning the language used in the 14 August 2018 letter that the Commonwealth "does not presently intend to rely upon" unauthorised absences in the first period do nothing more than engage in semantic gymnastics. The Commonwealth says that the apparent and practical meaning of that statement is that it had retrospectively deemed the first period of absence to be authorised; (b) Clause G9.8 stipulates that the Secretary may deem leave to be "unauthorised absence" where the Secretary has required an employee to provide suitable evidence to support absences from the workplace (emphasis in submission). Dr Chee's report stated that Mr Kelly "will never likely be capable of working in his previous department due to the trauma he received and subsequent handling of his case" and "in the future, he would not be able to work within the Australian Public Service generally, and this included his previous department". It is abundantly clear that Dr Chee's report is not evidence in support of an absence - it is a declaration that Mr Kelly was never going to be able to return to work with DHS. Therefore cl 9.8 of the second enterprise agreement could not be engaged; (c) The authorities cited by Mr Kelly relying on s 22 of the Fair Work Act are inapposite because s 22 concerns the evaluation of what is considered to be "service" and "continuous service", and it carves out from those definitions certain periods, including "unauthorised absences"; (d) The term "absence" in cl G9.8 of the second enterprise agreement must be construed in its particular context, appearing, as it does, in a chapter that deals with the kinds of "leave" available. The very notion of "leave" encompasses an expectation that an employee will be returning to the workplace after the period of leave. Accordingly, the proper construction of "absence" in cl G9.8 is that it refers to a period of absence from the workplace where there is an expectation that an employee will be returning to the workplace; (e) Accordingly, as from 25 May 2018, by service of Dr Chee's report, Mr Kelly told the Commonwealth that he would not be returning to the workplace and so there was no "suitable evidence" to support any "absence" and the discretion in cl G9.8 of the second enterprise agreement could not be enlivened; and (f) Furthermore, cl G9.9 makes it clear that whether the Commonwealth grants unpaid leave to an employee is wholly discretionary. This discretion may be engaged where an employee does not have sufficient personal/carer's leave credits to access paid leave, or where an employee has been required to provide suitable evidence to support their absence and suitable evidence is not provided. Mr Kelly's preferred construction of the second enterprise agreement - that an employee who provides suitable medical evidence is entitled to unpaid leave - is clearly wrong. Mr Kelly did not have sufficient personal/carer's leave credits to access paid leave and therefore it was open to the Commonwealth to exercise its discretion to not grant him unpaid leave during this period. That had the effect that Mr Kelly's absence from the workplace during the second period was unauthorised. This does not engage the terms of cl G9.8 of the second enterprise agreement at all. 163 The Commonwealth further submitted that: (a) Mr Kelly's claim that the loss he has suffered is hurt, humiliation and distress and exacerbation of injury as a consequence of the contravention of the enterprise agreement is a novel claim. The cases cited as authority for the proposition that non-economic loss is compensable under s 545 of the Fair Work Act do not involve breaches of enterprise agreements. They are all claims of adverse action under s 340 of the Fair Work Act and breach of the freedom of association provisions. The policy considerations behind courts not accepting damages claims for hurt, humiliation and distress for breach of contract are more applicable to claims of breaches of enterprise agreements: see Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 (Australian Licensed Aircraft Engineers Association) at [441] to [449] (Barker J); and (b) Further, even if there were any detrimental effects caused by the alleged breach of the enterprise agreements in the first period (which is denied) they were remedied prior to Mr Kelly commencing these proceedings. Accordingly, any breach of cl G9.8 of the enterprise agreements relating to this period will be a pyrrhic victory. In accordance with the de minimis doctrine, it would not be appropriate for the Court to exercise its discretion under s 545 of the Fair Work Act to order compensation for any putative breach (which is denied) because the alleged breach had no practical effect upon Mr Kelly. In essence, this is a complaint without a purpose. 164 The Commonwealth submitted that the threshold established in the Federal Court Rules for strike-out actions has been lowered so that Courts are empowered to strike out claims that do not have "real" as opposed to "fanciful" prospects of success. It says that the breach of enterprise agreement claims are so weak they do not disclose a reasonable cause of action and, even if there has been a breach of the enterprise agreements (which is denied), it will not sound in a remedy.

[38]

Consideration 165 In my view, the issues raised by ASOC [233]-[238] should be left to a trial judge to determine after full argument and evidence given the importance of authoritative interpretation of cl G9.8 of the second enterprise agreement. 166 Issues raised include what constitutes "absence", a "medical certificate" (in light of the definition of "suitable evidence" in cl G9.11 and the terms of the 17 May 2017 direction letter and later correspondence ), whether a discretion to designate absence as "unauthorised" was enlivened, whether finding that absence was "unauthorised" after the provision of medical certificates amounted to a "contravention", whether the Commonwealth (by the letter dated 14 August 2018) did, in fact, authorise the absences between 25 September 2017 and 28 August 2018 having regard to the language used and what impact (if any) it had on Mr Kelly's right to claim compensation (including by the payment of a pecuniary penalty to him) for non-economic loss which he claims to have suffered. 167 Similarly, if there was a contravention of cl G9.8, it should be left to a trial judge, after full argument and evidence, to determine whether Mr Kelly may be entitled to the award of compensation or a civil penalty in circumstances where he does not claim economic loss as a result of the alleged contravention. In this regard, I note that Barker J appears to have left open the possibility of a right to damages for distress, hurt and humiliation in relation to contravention of ss 340 and 346 of the Fair Work Act having regard to the terms of s 545 of that Act: see Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [441] to [449] (Barker J). As a matter of principle, there is no reason why pecuniary penalties awarded to an employee under s 546 should not be subject to similar considerations, subject to the limitation in s 546(2) of the Fair Work Act. 168 This is an area in which the law may well develop and it is appropriate to exercise caution in relation to striking out or summarily dismissing such a claim lest the development of the law in this area be stifled. The Commonwealth forcefully submitted that, in fact, the Commonwealth did not rely on any absence before 29 August 2018 to terminate Mr Kelly's employment and therefore Mr Kelly suffered no loss or damage as a result of various communications to him that it had deemed periods of absence between 25 September 2017 and 14 August 2018 to be unauthorised. That Mr Kelly might have suffered distress, hurt and humiliation as a result of the correspondence received from the Commonwealth and in attempting to meet its demands is, in my view, entirely open to a Court to accept. The possibility that the Court would determine to compensate him by the award of a pecuniary penalty within allowed parameters and having regard to overall compensation for the claims he has made cannot be discounted.

Parties

Applicant/Plaintiff:

Kelly

Respondent/Defendant:

Commonwealth of Australia as represented by Services Australia

Legislation Cited (11)

(Cth), the Disability Discrimination Act 1992(Cth)

(Cth), the Fair Work Act 2009(Cth)

Trade Practices Act 1974(Cth)s 84

Federal Court Rules 2011(Cth)rr 16.21(1), 30.01(1)

Federal Court of Australia Act 1976(Cth)ss 31A, 37M

Sex Discrimination Act 1984(Cth)s 4, 14, 105, 106

Australian Human Rights Commission Act 1986(Cth)ss 3, 46PO

Disability Discrimination Act 1992(Cth)ss 4, 14, 15, 122, 123

Fair Work Act 2009(Cth)ss 22, 50, 90, 117, 545, 546

Public Service Act 1999(Cth)ss 20, 29

Anti-Discrimination Act 1977(NSW)

Cases Cited (82)

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 Construction Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, (2022) 96 ALJR 89 Cossich v G Rossetto and Co Pty Ltd (T/as) Sky Cellars [2001] SAIRC 37 Davey v Bentinck [1893] 1 QB 185 Duffy v Eastern Health & Social Services Board [1992] IRLR 251 Dye v Commonwealth Securities Limited [2010] FCA 720 EA v Diaconu [2020] NSWCA 127; (2020) 102 NSWLR 351 Elliot v Nanda [2001] FCA 418; (2001) 111 FCR 240 Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 Hall v A & A Sheiban Pty Ltd [1989] FCA 65; (1989) 85 ALR 503 Hodson v Pare [1899] 1 QB 455 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jake Johansen v J H Lever & Associates Pty Ltd [2019] FWC 2766 John Holland Pty Ltd v Maritime Union [2009] FCA 437 Kura Yerlo Council Inc (Fair Workers Compensation)(SA) Pty Ltd v Gerald Clements Leonard [1998] SAWCAT 12 Lee Ting Sang v Chung Chi-Keung [1990] UKPC 9; (1990) 2 AC 374 Lisciandro v Official Trustee in Bankruptcy [1995] FCA 716; (1995) ATPR 41-436 Market Investigations v Minister of Social Security [1969] 2 QB 173 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 Montreal v Montreal Locomotive Works Ltd [1946] UKPC 44; [1947] 1 DLR 161 Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130; (2015) 234 FCR 207 On Call Interpreters & Translators Agency Pty Ltd v Federal Commissioner for Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 131; (1994) 121 ALR 405 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 Prison Service v Johnson [1997] ICR 275 Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; (1988) 194 CLR 355 Pruessner v Caeli Constructions Pty Ltd [2022] FedCFamC2G 206 Radisch v McDonald [2010] FCA 762; (2010) 198 IR 244 Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Walter v Alltools Ltd (1944) 171 LT 371 Wenlock v Moloney [1965] 1 WLR 1238 Wickstead v Browne [1992] 30 NSWCA 272; (1992) 30 NSWLR 1 Williams & Humbert v W & H Trade Marks [1986] AC 368 Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14 Yaraka Holdings Holdings Pty Limited v Ante Giljevic [2006] ACTCA 6; (2006) 149 IR 339 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144

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Whelan v Oldfield Entertainment Pty Ltd