Relevant authorities
110 In Penhall-Jones v State of NSW [2007] FCA 925 at [6], Buchanan J found that s 46PO of the HREOCA (as the AHRC Act was then known) provided the source of the jurisdiction to advance a victimisation claim under s 42 of the Disability Discrimination Act 1992 (Cth) in the Federal Magistrates Court. His Honour concluded at [10]:
Accordingly the Federal Magistrates Court has power to deal with an application alleging victimisation under the Act if a complaint to that effect is terminated under s 46PH of the HREOC Act. Such proceedings are civil proceedings. They are to be distinguished from proceedings for an offence brought directly under s 42 of the Act (see O'Connor v Ross (No 1) [2002] FMCA 210 at [11]).
111 In O'Connor v Ross (No 1) [2002] FMCA 210, Driver FM rejected an application to strike out a claim of victimisation contrary to s 42 of the Disability Discrimination Act 1992 (Cth). His Honour explained at [11]:
The respondents properly objected to the assertion in the original application that they had been guilty of criminal offences. The jurisdiction of this Court is to deal with complaints of discrimination that HREOC has been unable to resolve. The jurisdiction of this Court does not extend to the hearing of charges for alleged offences against the DDA or the HREOC Act. It was for that reason that I ordered that the application be amended to delete reference to an offence. That has been done. Mr Abaza submits that the amended application remains objectionable because it continues to assert victimisation contrary to either or both of s.42 of the DDA and s.26 of the HREOC Act. This objection indicates a partial misunderstanding. The DDA provides that it is an offence for a person to commit an act of victimisation. Where victimisation is dealt with as an offence, it will be prosecuted by the Director of Public Prosecutions in a court of competent jurisdiction other than this Court. However, a person may also make a complaint of victimisation to HREOC which the Commission will attempt to resolve by conciliation. Where conciliation is unsuccessful, the matter will then be referred for hearing by this Court or the Federal Court if application is made. Section 3(1) of the HREOC Act defines unlawful discrimination as acts, omissions or practices that are unlawful under Part 2 of the DDA and specifically includes any conduct that is an offence under Division 4 of Part 2 of the DDA. It follows that the applicant was entitled to make a complaint of victimisation to HREOC and that this Court has jurisdiction to consider the claim in respect of victimisation where HREOC has been unable to resolve the complaint by conciliation and the President has issued a notice of termination. This Court has dealt with such claims on a number of occasions: Tadawan v State of South Australia [2001] FMCA 25; Aleksovski v AAA [2002] FMCA 81; and Font v Paspaley Pearls & Ors [2002] FMCA 142. I add, for completeness, that my conclusions on this issue have taken into account s.125 of the DDA. The applicant's right of civil action derives from the HREOC Act, not the DDA.
112 In Dye FCA, Katzmann J rejected an amendment to a pleading to allege that conduct that amounted to a breach of s 94 of the SD Act also gave rise to a common law cause of action. Her Honour concluded at [78]:
… the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. In my view it is an exclusive one.
113 Her Honour's conclusion was upheld on appeal in Dye FCAFC. The Full Court stated at [70]-[71]:
70 The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act. … She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act 1984 (Cth). Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s94 of the Sex Discrimination Act 1984 (Cth). As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3). In arriving at this conclusion her Honour applied Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at 362-363 [20], 366 [31]-[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
71 The primary judge was correct to have rejected this amendment because Re East [1998] HCA 73; 196 CLR 354 made it unarguable. The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act: Re East 196 CLR at 364- 365 [24]-[25]. Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act 1984 (Cth). That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act 1984 (Cth), creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. Neither the AHRC Act nor the Sex Discrimination Act 1984 (Cth) create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act: Re East [1998] HCA 73; 196 CLR 354. It follows that the primary judge was correct to have rejected this proposed amendment to par 75.
114 A different view as to the jurisdiction of the Court to deal with a civil claim of victimisation under s 94 of the SD Act was expressed by Gray J in Walker v Cormack (2011) 196 FCR 574 (Cormack); [2011] FCA 861 at [41]:
The specific provisions permitting a complaint of victimisation (but not in relation to advertising) to be made to HREOC, coupled with the provisions of s 46PO(1) of the Human Rights Act, permitting an application alleging unlawful discrimination, following the termination of a complaint, suggest that Parliament was contemplating that victimisation might also be dealt with as a civil matter. This would be an unusual situation. It would give rise to the possibility that a litigant dissatisfied with the result of a civil proceeding in relation to alleged victimisation might then bring a criminal prosecution. This possibility would inhibit the ability of the alleged victimiser to give evidence in the civil proceedings, because of the possibility that he or she might be giving self-incriminatory evidence that could be used against him or her in a later criminal trial. For these reasons, it may be that, despite the use of the phrase "unlawful discrimination" in s 46PO(1), coupled with the definition of that term in s 3(1) of the Human Rights Act, victimisation cannot be the subject of a civil proceeding. The conferral only of civil jurisdiction might amount to a contrary intention, to which the opening words of s 3(1) refer, so that the meaning of "unlawful discrimination" is to be construed in a more restrictive way in s 46PO(1). Again, these issues were not able to be fully explored.
115 The view expressed by Gray J, however, was obiter dicta because his Honour agreed with the Federal Magistrate that the reason for the applicant's exclusion from an all-female exercise class was in response to his inappropriate behaviour, not in response to his complaint of discrimination: Cormack at [24] and [46]. Moreover, the view was expressed tentatively ("it may be that"), the question of whether a civil action was available for victimisation by reason of ss 3(1) and 46PO(1) of the HREOCA was not raised by the parties, and the decisions of Katzmann J in Dye FCA and the Full Court in Dye FCAFC were not addressed.
116 A more definitive view that the HREOCA did not convert victimisation offence provisions into civil causes of action was expressed by Gray J in the Full Court in Walker v State of Victoria [2012] FCAFC 38 (Walker). Gray J (with Reeves J agreeing at [167]) stated at [99]:
It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37] - [41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether "conduct that is an offence" under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.
117 Again, the statement by Gray J was obiter dicta. The Full Court was addressing whether the trial judge had jurisdiction to deal with victimisation as a criminal offence. It was not being asked to determine if the trial judge had jurisdiction to deal with victimisation as a civil case. Further, it would appear that their Honours were not referred to the earlier decision of the Full Court in Dye FCAFC.
118 The Full Court in Chen v Monash University (2016) 244 FCR 424; [2016] FCAFC 66 (Chen) (Barker, Davies and Markovic JJ), endorsed the views expressed by Gray J in Walker concerning the absence of any civil jurisdiction to deal with victimisation offences in discrimination legislation. Their Honours stated at [121]:
Section 49B of the AHRC Act confers on this Court and the Federal Circuit Court of Australia (Federal Circuit Court) concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC and, in conferring jurisdiction on this Court in relation to any matter arising under any laws made by the Commonwealth Parliament, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) expressly excludes "a matter in respect of which a criminal prosecution is instituted or any other criminal matter". While a claim of victimisation can be made to the AHRC it seems that it cannot, based on the operation of these sections, be made to this Court.
119 After setting out the statement by Gray J in Walker at [99], their Honours then stated at [123]-[124]:
123 The primary judge addressed this issue at [10] to [11] of his judgment. In doing so he observed that the applicant accepted the Court could not entertain claims of victimisation because the Court has no jurisdiction to deal with a claim that creates a criminal offence. At the election of the applicant and, without opposition from the respondents, the allegations that would otherwise have made up the applicant's claim of victimisation were dealt with as sex discrimination claims which formed part of a course of conduct on the part of the first respondent. There is no appealable error in the approach of the primary judge to this issue. He properly found that there was no jurisdiction in this Court to hear a claim which amounts to a criminal offence and made reference to the authority that was binding on him: Walker v Victoria. The applicant was permitted to lead evidence in relation to the matters that she said amounted to victimisation as part of her sex discrimination claims.
124 The applicant relies on Alexander v Cappello, a decision of Judge Driver in the Federal Circuit Court, in which Judge Driver made a finding that a claim of victimisation pursuant to s 94 of the SD Act had been established. Although Judge Driver refers to the judgment of Gray J in Walker v Victoria, he did not consider the issue of whether the Federal Circuit Court had jurisdiction to consider a claim for victimisation pursuant to s 94 of the SD Act. We assume the issue was not raised and his attention was not drawn to the relevant remarks of Gray J on that issue in Walker v Victoria. In any event, Alexander v Cappello was not binding on the primary judge and, if it was brought to his attention, he properly did not follow it.
120 The Full Court's attention does not appear to have been drawn to the earlier decision of the Full Court in Dye FCAFC and again the statements in Chen at [121] to [124] were strictly only obiter dicta. The Full Court was considering whether it had an implied power, in the interests of justice, to permit a discontinued appeal to be reinstated. The Court concluded at [54] that there had been no abuse of process, the decision to discontinue had been a deliberate and informed decision by the applicant and therefore the implied power to prevent an abuse of the processes of the Court was not enlivened. Their Honours made the statements at [121] to [124] in the course of concluding that, "[f]urther, and in any event" the appellant's prospects for success in the appeal were so low that it would not be appropriate to exercise the power in the applicant's favour.
121 Further, it is relevant to note that at first instance, as explained in Chen at [123], the applicant's victimisation claims were dealt with as sex discrimination claims that formed part of a course of conduct of the first respondent.
122 In Winters v Fogarty [2017] FCA 51, Bromberg J declined to strike out a claim of victimisation based on the proposition that the Court lacked jurisdiction to deal with it. After referring to the judgments of the Full Court in Chen and Walker, his Honour then stated at [33]-[34]:
33 In Chen v Birbilis [2016] FCA 661, North J, on a summary judgment application, followed the Full Court in Chen ([10]-[11]). But with respect to his Honour, I do not consider that I am bound by the Full Court's judgment in Chen because what was there said was obiter. Nevertheless, it is obiter from a Full Court and I would have followed it had the Full Court in Dye not made the observations to which I have referred. It is not apparent that either North J or the Full Court in Chen were taken to Dye. Nor, given that in each case Ms Chen was unrepresented, did North J, Tracey J or the Full Court have the benefit of fulsome argument on the point. Equally, the Full Court in Dye did not have the benefit of the observations made by Gray J in Walker or those of the Full Court in Chen.
34 In the circumstances, I am not persuaded that there is no reasonable question to be tried as to the Court's jurisdiction and that, on the basis of a lack of jurisdiction, Ms Winters has no reasonable cause of action. Additionally, without being critical of the parties, I am of the view that the issues underlying the conflicting authorities to which I have referred were not fully explored at the hearing of the interlocutory application, and would benefit from more fulsome argument at final hearing. For those reasons, I consider that the challenge made to the Court's jurisdiction is not a sufficient basis for striking out [134]-[148] of the Statement of Claim in VID 323.
123 In both Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 at [16] (White J) and Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [138] (Abraham J) first instance judges concluded that, on the state of the authorities, there was a "live issue" as to the Court's jurisdiction to hear and determine a claim of victimisation and that a decision of the Full Court would be necessary for the issue to be authoritatively determined.
124 Similar statements as to the present state of the authorities were made in Troupoulos v Journey Lawyers Pty Ltd [2019] FCA 436. Justice Collier stated at [319]:
I note that s 3 of the AHRC Act defines unlawful discrimination as including conduct which is an offence under Div 4 of Pt 2 of the DD Act, which includes the offence of victimisation, and that if a complaint is terminated by the Commission under s 46PH of the AHRC Act then proceedings may be brought pursuant to s 46PO of the AHRC Act (as occurred here). I agree with the views of Bromberg J and White J that there is a live issue whether the Federal Court can entertain a civil claim of victimisation under the DD Act notwithstanding that s 42 provides that it is a criminal offence. Notwithstanding the inconclusive state of Full Court authority on this point, for the purposes of the present application, I am prepared to accept that the Court does have the jurisdiction alleged by Mr Tropoulos and can consider whether Mr Tropoulos has a civil action against Journey Lawyers for victimisation under the DD Act.