Perananthasivam v Telstra Corporation Limited

Disability Discrimination Act 1992 (CTH) 6 The applicant's case in the Federal Magistrates Court rests on what is said to be Telstra's unlawful discrimination against him on the ground of disability, in contravention of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) ('DD Act'). 7 Section 5 of the DD Act is headed 'Disability discrimination'. Section 5(1) provides as follows: 'For the purposes of this Act, as person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability'. 8 Section 6 of the DD Act is headed 'Indirect disability discrimination'. It provides as follows: 'For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply'. 9 Section 15 deals with 'Discrimination in employment'. Section 15(2) provides as follows: '(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 or a disability of any of that employee's associates: (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'.

Judgment No 1 10 The learned Federal Magistrate dealt first with the application to remove Deacons as the solicitors acting for Telstra in the proceedings. His Honour noted that the applicant's essential complaint was that Deacons had conducted the investigation relating to the incident that occurred on 9 February 2004. He also noted that Deacons had acted for Telstra in the AIRC proceedings, but not in relation to the applicant's worker's compensation claim determined by the AAT. 11 His Honour found that at no stage had Deacons acted for the applicant. There was therefore no basis for restraining Deacons from acting on behalf of Telstra by reason of any breach of a fiduciary duty owed by Deacons to the applicant. His Honour also found that the applicant had not presented any documents to Deacons in connection with the investigation that had continued to be confidential. It followed that the only issue was whether the Court: 'should restrain Deacons from acting for Telstra in accordance with general principles of the interests of the administration of justice and pursuant to a general power in the Court to control legal practitioners as officers of the Court'. 12 The Federal Magistrate was not satisfied that the circumstances of the case called for an order of the kind sought by the application. His Honour observed that: 'The reference to an "independent" investigation is an odd and probably unfortunate one. Because Deacons had been engaged by Telstra to inquire and report to it, the investigation was not independent in any sense that has significance to me. What was probably meant was that the solicitors would interview relevant persons and draw factual conclusions themselves and that that task would not be undertaken by Telstra management. In the event, a report was prepared which set out the allegations and the response to the allegations and made factual findings. No recommendations appear in the report. The report, while being made to Telstra, was disclosed to the applicant'. 13 His Honour stated his conclusions as follows: 'In my view, while the description of the investigation as "independent" was probably unfortunate and may have [led] the applicant to a misapprehension of the investigation process, there is nothing in the fact of the investigation or the conduct of the investigation by Deacons which justifies an order restraining them from now acting for Telstra in the present proceedings. The solicitors were, on behalf of Telstra, simply finding facts and reporting them. The interests of the administration of justice [do not] require those solicitors to be restrained from acting for their client in this subsequent proceeding which has only a remote link to that inquiry and report'. 14 His Honour accordingly dismissed the application. He ordered the applicant to pay Telstra's costs of the application in the sum of $5,000. Judgment No 2 15 The Federal Magistrate recorded that Telstra's principal submission was that the application for relief was an abuse of process within the meaning of FMCR, r 13.10(c). Telstra advanced two bases for this argument, as follows: '(a) the applicant is in substance seeking to re-litigate the matters previously litigated in the AIRC Proceedings, on appeal to the Full Bench and in the AAT Proceedings; and (b) the applicant's application, and his conduct in this Court, amount to the use of proceedings in a way that is unfairly burdensome, prejudicial and productive of serious and unjustified trouble and harassment'. 16 His Honour observed that unfair dismissal claims of the kind brought by the applicant before the AIRC were to be distinguished from unlawful dismissal claims. He pointed out that there is an overlap between unlawful dismissal proceedings under the WR Act and a discrimination claim brought pursuant to the HREOC Act. The applicant had elected not to bring any claim for unlawful dismissal before the AIRC. Instead, he had made a claim of unlawful discrimination to HREOC, which had decided to terminate that claim. 17 His Honour accepted that the mere fact that the applicant's earlier claim of unfair dismissal had been rejected did not bar him from bringing proceedings based on alleged disability discrimination contrary to the DD Act. In his view, the real question was whether the proceedings were an abuse of process, or were to be regarded as frivolous or vexatious, on the ground that they amounted in substance to a re-agitation of the issues already considered and resolved in the earlier proceedings. 18 In order to answer that question, his Honour considered it necessary to examine the decision of the AIRC. The AIRC found that there had been a valid reason for the applicant's dismissal from his employment. It also found that there had been no unfairness in the performance review process or in the termination itself. His Honour considered that: 'to a significant degree the present proceeding before the Court is a re-agitation of the proceeding before the AIRC. In substance, the applicant is seeking to take advantage of the favourable worker's compensation decision he achieved in the AAT to re-visit the findings of the AIRC. His cause is not assisted by the terms of his complaint to HREOC and of his application to the Court, the voluminous material he has so far filed … which traverses issues that could not conceivably be relevant to a claim of disability discrimination and the manner in which he has conducted his case thus far'. His Honour remarked that the proceedings were not to be regarded as a forum for: 'general grandstanding in relation to employment grievances and dissatisfaction with earlier legal processes'. 19 The Federal Magistrate said that, to the extent that the application related to a claim of unlawful dismissal, it was difficult to link it to a clear assertion of disability discrimination: 'The application seeks relief for disability discrimination in the termination of his employment on the basis of poor performance while the applicant was suffering from a disability. In other words, the applicant is merely asserting a coincidence between the fact of the disability and the termination which was undoubtedly based upon poor performance. Thus expressed, it is hard to view this as anything other than an attempt to re-litigate the fairness of his termination'. (The meaning of the second sentence of this passage is not entirely clear. The applicant was presumably asserting that his poor performance in his employment was a consequence of his disability so that the termination of his employment was by reason of his disability.) 20 According to the Federal Magistrate, the matter was further clouded by the applicant's claim of both direct and indirect discrimination and his failure to identify which paragraphs of s 15 of the DD Act he relied upon. The course of argument had revealed that the applicant's real complaint about disability discrimination related to the PIP, to which he was subjected in July 2004. The applicant had stated in argument that this was a claim of indirect disability discrimination, in that he could not participate in that PIP because of the disability he had suffered as the result of the incident on 9 February 2004. His Honour thought that this claim was arguable. In effect, the applicant wished to assert that Telstra had breached s 15(2)(d) of the DD Act, in that he was subjected to a detriment by being required to participate in and comply with the PIP notwithstanding his disability. In all other respects, his Honour considered that the application was no more than a re-agitation of the applicant's claims before the AIRC and the AAT and that he should not be permitted to pursue his claim. 21 His Honour considered that the applicant should bear the costs of the summary dismissal application: 'If the applicant had confined his proceeding to the Court to the real issue, namely the assertion of indirect disability discrimination by reason of being required to participate in the PIP in July 2004 this interlocutory hearing may well not have been necessary. The generality of the applicant's complaint to HREOC and his application to the Court and the voluminous, extravagant and at times embarrassing material he has submitted in support of the application has clouded the real issue and created a strong sense that the applicant was merely using the Court as a grandstand in order to re-agitate his concern about the previous proceedings'. Judgment No 3 22 In Judgment No 3, the learned Federal Magistrate accepted that Telstra had incurred actual costs of approximately $21,000 in relation to the summary dismissal application. As I have noted, his Honour quantified costs on a party and party basis at $10,000.

REASONING The Requirement for Leave 23 The orders made in Judgment No 1 and Judgment No 2 are interlocutory in character. This is so in the case of the order refusing the application to remove Deacons as Telstra's legal representatives because the order does not finally determine the rights of the parties. The order would not of itself prevent the applicant from making another claim for the same relief in the proceedings, even though the application might have little prospects of success: Bienstein v Bienstein (2003) 195 ALR 225, at 230 [25], per curiam. The order striking out, in part, the application to the Federal Magistrates Court is also interlocutory in character: Rana v University of South Australia (2004) 136 FCR 344, at 345-346 [6]-[15], per Lander J. 24 The Federal Court has jurisdiction to hear and determine appeals from the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth: Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'), s 24(1)(d). Since the orders in the present case were interlocutory, leave of the Federal Court is required: Federal Court Act, s 24(1A). 25 In determining whether leave should be granted, the Court applies two inter-related principles: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 398-399, per curiam; Bienstein v Bienstein 195 ALR 225, at 231 [29], per curiam. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The Application for Leave to Appeal from Judgment No 2 26 It is convenient to commence with the application for leave to appeal from the orders made in Judgment No 2. An assessment of the merits of that application must start with an understanding of the effect of the orders made by the Federal Magistrate. This is not an entirely straightforward task in the absence of pleadings, or indeed any other document clearly outlining the applicant's case. 27 The proceedings were commenced in the Federal Court and subsequently transferred to the Federal Magistrates Court. The relief sought by the applicant in his initiating process was as follows: '1. an order declaring that [Telstra] has committed unlawful discrimination against the [a]pplicant and directing [Telstra] not to repeat or continue such unlawful discrimination. 2. an order requiring [Telstra] to provide a letter signed by the Chief Executive Officer of Telstra to the [a]pplicant stating that: (a) it subjected the [a]pplicant to disability discrimination in its requiring the applicant to undertake performance improvement on a basis that did not adequately take into account of his disability, or that it treated his disability in a discriminatory manner; (b) it subjected the applicant to disability discrimination in terminating his employment on the basis of poor performance while the applicant was suffering from a disability and failing to accord him the benefit of Telstra's policy for managing long-term medical restrictions; (c) it failed to provide the applicant as a person suffering with an anxiety disorder with an environment free of bullying and in which the applicant could feel safe and that it failed to ensure its management was properly trained and supervised so that incidents of bullying did not recur; (d) it unreservedly apologises for its conduct to the [a]pplicant. 3. an order requiring [Telstra] to re-employ the applicant effective from the date of termination of employment with backdated pay and other entitlements; 4. an order requiring Telstra to advise its employees within the area where the [a]pplicant formerly worked within Telstra that the [a]pplicant was wrongfully terminated and that Telstra acted in a manner discriminatory towards him on the ground of disability; 5. an order requiring [Telstra] to pay to the applicant damages by way of compensation for the loss or damage suffered because of the conduct of the respondent with respect to loss of income, pain and suffering, medical expenses; 6. an order requiring [Telstra] to pay aggravated damages; 7. an order to pay costs'. 28 The application attached the form by which the applicant had complained to HREOC of unlawful discrimination by Telstra. The description in this document of the alleged unlawful discrimination complained included the following acts: 'I. requiring the applicant to undertake performance improvement on a basis that did not adequately take into account … his disability, or that it treated his disability in a discriminatory manner; II. terminating his employment on the basis of poor performance while the Applicant was suffering from a disability and failing to accord him the benefit of [Telstra's] policy for managing long-term medical restrictions; III. failing to provide the Applicant, as a person suffering a disability with an environment free of bullying and in which the applicant could feel safe and that it failed to ensure its management was properly trained and supervised so that incidents of bullying did not recur'. 29 The form went on to specify in more detail the alleged discriminatory conduct. The particulars (if this is the proper description) comprised 14 paragraphs. The first three paragraphs alleged that Telstra engaged in unlawful disability discrimination against the applicant: 'a. by requiring the Applicant to undertake contact with personnel that had caused his disability, in circumstances where the Applicant reasonably believed such contact would aggravate his disability and subjecting the Applicant to penalty for being unable to engage in such contact by terminating his employment; b. by requiring the Applicant to increase his work hours beyond the hours recommended by his medical advisers at a time when he was suffering from a disability of which the Respondent was aware, and then penalising the applicant in relation to claimed failure to meet those increased hours; c. by failing to adequately take into account the Applicant's disability in the work allocation to him, the conditions of that work and then to penalise him on the basis of those requirements'. 30 A fourth paragraph alleged that Telstra had engaged in unlawful disability discrimination against the applicant: 'h. By requiring the [a]pplicant to undergo the normal [PIP] process at the time he suffered a disability, including because [his] injury would be aggravated by the process'. 31 The application and the annexed documentation did not specify any temporal limitation in relation to the conduct complained of. Perhaps for this reason, a substantial amount of hearing time was apparently spent in the Federal Magistrates Court attempting to ascertain the precise nature of the applicant's case. Without implying any criticism of the Federal Magistrate, who was faced with a very difficult task, this endeavour does not seem to have been entirely successful, although his Honour did say that the applicant's real complaint centred on the requirement that he participate in the PIP. 32 The most significant orders made by the Federal Magistrate were as follows (retaining the original numbering): '(2) The application filed on 18 April 2007 be struck out, except insofar as it asserts indirect disability discrimination in relation to the performance improvement programme [in] which the applicant was required to participate in July 2004. … (5) The applicant has leave to file and serve on the respondent an amended application limited to the ground of disability discrimination identified by the Court in order (1) above, but seeking such relief in respect of that ground that the applicant deems appropriate, no later than 14 September 2007'. 33 I asked both the applicant and Mr Shields, who appeared for Telstra, precisely what contentions order 2 permits the applicant to advance in the Federal Magistrates Court. I also asked what aspects of the applicant's case, if any, are foreclosed by the terms of order 2. 34 Mr Shields indicated that he had some difficulty in answering the question, although he said that the order was clearly intended to prevent the applicant raising any claim connected with the so-called independent investigation carried out by Deacons. He did not dissent from the proposition that the orders do not foreclose the applicant from claiming that Telstra's requirement that he participate in the PIP in July 2004 involved unlawful disability discrimination. Nor did Mr Shields dissent from the proposition that the applicant is free to contend that Telstra's conduct leading up to the imposition of the PIP requirement failed to pay regard to the applicant's disability and therefore amounted to disability discrimination. Mr Shields also accepted, as I understood him, that the applicant is free to claim that, insofar as Telstra's termination of his employment resulted from his refusal to participate in the PIP, the dismissal itself involved unlawful disability discrimination. (I should add that it appears to be the case that the applicant's employment was terminated on the ground that he had refused the instructions of management to participate in the PIP, although the applicant seemed to suggest that his employment was terminated because he failed to achieve the required improvement in standards.) 35 The applicant explained that, despite the form of the application filed in the Federal Court, he has never intended to rely in the Federal Magistrates Court on Telstra's conduct insofar as that conduct took place before 9 February 2004. The substance of the case he wishes to put, as I followed his explanation, is this: · by reason of the inappropriate conduct of Telstra's managers on 9 February 2004, the applicant became disabled (that is, he suffered from the stress-related condition that led to him taking sick leave from 10 February 2004 until 3 May 2004); · from his return to work on 3 May 2004 (on a part-time basis) until the termination of his employment on 19 August 2004, Telstra imposed requirements and conditions on him that took no, or insufficient, account of his continuing disability and amounted to disability discrimination; · since the applicant was unable by reason of his disability to comply with these requirements and conditions, Telstra required him to participate in the PIP; · the requirement for him to participate in the PIP was itself disability discrimination in contravention of the DD Act; and · the termination of the applicant's employment resulted from disability discrimination because it was a direct consequence of his refusal to participate in the PIP. 36 Mr Shields accepted that the orders made by the Federal Magistrate do not prevent the applicant pursuing the case as outlined above. The only qualification he attached to this proposition was that, although the applicant is free to adduce evidence of allegedly discriminatory conduct by Telstra during the period 3 May 2004 to 19 August 2004, he cannot claim relief by reason of that conduct, except insofar as it related to the imposition of the requirement that the applicant participate in the PIP. 37 I asked the applicant to identify any aspect of the case he wishes to pursue that, in the light of Telstra's understanding of his Honour's orders as explained by Mr Shields, the orders do not permit him to pursue. The applicant did not identify any such aspect of his case. Indeed I did not understand the applicant to say that he wishes to claim any relief in respect of any discriminatory conduct by Telstra during the period 3 May 2004 to 19 August 2004, except to the extent that the conduct related to the imposition of the PIP requirement. This is not to say that the applicant did not assert before the Federal Magistrate that his case was more wide-ranging than now appears to be the case. 38 In these circumstances, it seems to me that the applicant will not suffer substantial injustice if leave to appeal from Judgment No 2 is refused. The reason is that the orders made by the Federal Magistrate do not prevent the applicant, in substance, pursuing the case he wishes to make. It is perhaps unfortunate that this conclusion did not emerge clearly in the proceedings before the Federal Magistrates Court, although it seems likely that any lack of clarity was attributable, in large measure, to the way in which the applicant presented his case. Be that as it may, the position became tolerably clear on the hearing of the application for leave to appeal. 39 Thus far, I have approached the application for leave to appeal from Judgment No 2 without addressing the arguments the applicant wishes to canvass, should leave to appeal be granted. His outline of submissions identifies a large number of such arguments. Some are not easy to follow and others plainly lack merit. 40 One argument that perhaps is not so readily dismissed is the applicant's contention that the Federal Magistrate erred in characterising his disability discrimination claims as an abuse of process, in that his Honour failed to give sufficient weight to the fact that the issues considered by the AIRC were not the same as those the applicant now seeks to ventilate in the Federal Magistrates Court. However, in my view it is not necessary to evaluate the merits of this argument for the purposes of disposing of the leave application in relation to Judgment No 2. Even if the argument is plausible, it would not change my view. The applicant will not suffer substantial injustice by being denied the opportunity to put the argument on appeal, since the orders do not prevent him from putting the case he wishes to advance in the Federal Magistrates Court. It is also appropriate to take into account the fact that if the applicant ultimately fails in the Federal Magistrates Court proceedings, he has available to him an appeal as of right from the final orders made in those proceedings. Judgment No 1 41 I have some sympathy with the applicant's sense of grievance that the same solicitors who conducted the so-called 'independent investigation' of July 2004 have represented Telstra in the Federal Magistrates Court proceedings. The applicant was interviewed by the solicitors and he subsequently signed a statement setting out his version of the events of 9 February 2004. His statement recorded that it was made: 'in relation to the special independent investigation arranged by Telstra into my complaint regarding an incident on 9 February 2004'. (Emphasis added.) 42 It no doubt would have come as a surprise to the applicant that the solicitors who interviewed him and assessed the credibility of his allegations should then have acted for Telstra in opposing his claims for compensation and reinstatement. In my view, Telstra's decision to engage Deacons in both roles - and, for that matter, Deacons' decision to accept both roles - was not particularly sensitive to the position in which the applicant found himself. The sensitivity or otherwise of the decision is, however, not the issue that I must address. 43 Nothing the applicant has said in support of his application casts doubt on the principles stated and applied by the Federal Magistrate. There is no reason to doubt his Honour's finding that no solicitor-client relationship existed between the applicant and Deacons. There is also no reason to doubt his Honour's conclusion that Deacons did not acquire any confidential information by reason of its role as an investigator. As the applicant's written statement shows, there is nothing to indicate that he communicated information to the solicitors that otherwise would have been confidential. In substance, he recounted his version of the events that occurred on 9 February 2004. He had previously complained of those events to Telstra and set out his account of what occurred. 44 The Federal Magistrate identified the relevant question for decision as: 'whether, on the evidence before the Court, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceedings'. (quoting Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404, at [35], per Young J). His Honour accepted that the description of the investigation as 'independent' was 'probably unfortunate' and 'may have [led] the applicant to a misapprehension of the investigation process'. Nonetheless, his Honour did not think that the interests of justice required the solicitors to be restrained from acting for Telstra. 45 In my view, the applicant has an arguable case that, having regard to the real prospect that he had been misled by the description of the investigation as 'independent' (as the Federal Magistrate appears to have found), his Honour should have concluded that the interests of justice justified the Court restraining the solicitors from acting in the proceedings against the applicant. However, I am not satisfied that substantial injustice would be caused to the applicant if leave to appeal is refused. There is no plausible suggestion that the solicitors acquired any information adverse to the applicant in consequence of the investigation, let alone any confidential information. It is true that the authors of the report did not accept that the managers had actually intimidated the applicant at the meeting of 9 February 2004 and that they did accept that managers believed that the applicant had acted inappropriately. But the applicant's allegations were not found to lack credibility. On the contrary, the report in substance adopted his account of what the participants said at the meeting. It is difficult to conceive that the interview the solicitors conducted with the applicant in March 2004 would give Telstra a significant advantage in the current Federal Magistrates Court proceedings, whether in relation to cross-examination of the applicant or otherwise. 46 In the absence of any demonstrable injustice to the applicant, I do not think it is appropriate to grant leave to appeal from the Federal Magistrate's refusal to restrain Deacons from acting in the proceedings. As I have noted, if the applicant fails in the proceedings, he will have an appeal as of right. Should the applicant exercise that right, he will have the opportunity to argue, if he wishes, that Telstra obtained an inappropriate forensic advantage by having Deacons as its legal representatives in the proceedings in the Federal Magistrates Court. Judgment No 3 47 The applicant has not succeeded in his application for leave to appeal against the orders made in Judgment No 1 and Judgment No 2. He may have an argument that the Federal Magistrate's discretion on costs miscarried so far as the costs of the summary dismissal application are concerned. A contention perhaps may be open that his Honour did not take into account (as now appears to be the case) that the striking out of part of the applicant's case does not prevent him from pursuing the substance of the disability discrimination case he wishes to present to the Federal Magistrates Court. On the other hand, his Honour attributed to the applicant responsibility for the lack of clarity in his case and the consequent waste of court time spent in trying to ascertain the precise nature of that case. 48 In view of the dismissal of the applications for leave to appeal against the substantive orders in Judgments No 1 and No 2, I do not think it appropriate to grant leave to appeal solely against the costs order made by the Federal Magistrate in relation to the summary dismissal application. If the applicant ultimately fails in the proceedings, he will be entitled to appeal as of right. Such an appeal may provide the applicant with the opportunity to challenge the Federal Magistrate's order that he pay Telstra's costs of the summary dismissal application.

CONCLUSION 49 The application for leave to appeal against the orders made in Judgment No 1, Judgment No 2 and No 3 must be dismissed. As I have remarked, I am not without some sympathy for the applicant. Nonetheless, I see no basis on which costs should not follow the event. The applicant therefore must pay Telstra's costs of the application for leave to appeal. I certify that the preceding forty-nine (49) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Counsel for the Applicant: Mr S Perananthasivam (appeared in person) Counsel for the Respondent Mr B J A Shields Solicitors for the Respondent Deacons Date of Hearing: 9 October 2007 Date of Judgment: 16 October 2007