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[2015] FCA 118
Federal Court of Australia
2015-02-24
Re J, Perry J
Original judgment source is linked above.
2.1 Procedural steps before the hearing on 5 February 2015 3 In circumstances where the applicant did not appear at the hearing of the interlocutory applications, it is necessary to set out with some care the procedural history of the matter. In addition, the application by Ms Picos that I disqualify myself is based primarily upon my conduct at a directions hearing in a different proceeding instituted by her which was listed for directions on the same day as this, as well as a number of other actions instituted by Ms Picos. 4 By her originating application filed on 30 July 2014, Ms Picos alleges sexual harassment and unlawful discrimination against her on 11 July 2014 by the AFP contrary to s 28G of the SD Act and seeks an order for damages in the sum of $1 billion. That application states that it is accompanied by, relevantly, "[a] notice of termination of complaint given by a Deputy Director … on behalf of the President of the Australian Human Rights Commission on 18 July 2014", being a letter to Ms Picos dated 18 July 2014 from the AHRC. The contents of the letter are set out below at [45] below. The application was also accompanied by an affidavit affirmed by Ms Picos in which she set out details of the alleged sexual harassment. 5 By an application filed on 24 November 2014, the applicant sought leave to amend her originating application. The proposed amended originating application was subsequently annexed to an affidavit affirmed by Ms Picos on 12 January 2015. The proposed amendments were to include a claim for trespass and assault against the respondent also allegedly on 11 July 2014. 6 On 17 December 2014, the AFP applied for the application to be dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and rule 26.01 of the Federal Court Rules 2011 (Cth) (FCR), or in the alternative pursuant to FCR rule 13.01(1)(a). The effect of rule 31A(2) is that the Court may give summary judgment for the respondent where it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01 provides for a party to apply for such an order which must be accompanied by an affidavit. The accompanying affidavit sworn by the solicitor for the AFP filed on the same date as the application for summary dismissal deposed that the order for summary dismissal was sought on the basis "that the applicant has no reasonable prospect of successfully prosecuting the proceeding." The deponent also explains that: The basis for seeking these orders is that this Court has no jurisdiction to hear the applicant's application pursuant to s 46PO of the AHRC Act because: 6.1 a complaint has not been terminated by the President under section 46PE or 46PH of the AHRC Act; and 6.2 the President has not given a notice to the applicant under subsection 46PH(2) of the AHRC Act in relation to the termination. 7 On 12 December 2014, Ms Picos appeared in person at a directions hearing before Bennett J at which four other matters instituted by Ms Picos alleging sexual harassment against other respondents were also listed, namely Picos v Seven West Media & Ors (NSD 741 of 2014), Picos v Servcorp (NSD 766 of 2014), Picos v Northern Sydney Local Health District (NSD 767 of 2014) and Picos v Servcorp & Ors (NSD 1179 of 2014). The AFP appeared at that directions hearing represented by its solicitors. At the directions hearing, Ms Alexander for the AFP advised the Court that the AFP would submit that there was a question of jurisdiction in the matter because there had been no decision to terminate any complaint and that the document attached to Ms Picos' originating application is not a notice of termination of a complaint. Ms Alexander also advised that she had seen the applicant's proposed amendments but that the AFP's position was that, if the Court had no jurisdiction to deal with the application under the SD Act, then the further claims could not be appended to it. 8 Given the similarity between the jurisdictional issues raised in these proceedings and those raised in a number of the other matters, Bennett J listed all of the matters returnable on 5 February 2015. Her Honour concluded the directions hearing, emphasising that: Now, just to make it absolutely clear, everything is coming back on jurisdictional strikeouts on the 5th. There's either notice being given to Ms Picos as to agreement as to amended pleadings or, otherwise, they will be dealt with by Perry J on the 5th if they stand after the jurisdictional issues are run. And, Ms Picos, you have to file your evidence in relation to the jurisdictional questions in all of the other matters, which seems to be hinging on the - what has happened in the Human Rights Commission, if that's what it's called now - it's called now - anyway, as to whether things have been lodged, not lodged, terminated, not terminated, if you can get that evidence on by the 23rd and you are to file all your evidence in support of your application in the Seven [West Media matter (NSD 741 of 2014)] by that same date. (emphasis added) 9 The orders made by Bennett J in the current proceedings were that: 1. The Respondent file and serve any interlocutory application seeking summary dismissal of the application or summary judgment and an affidavit in support on or before 4 pm 19 December 2014. 2. The Applicant file and serve any evidence in reply by 4 pm 23 January 2015. 3. Any and all interlocutory applications [sic] for amendments to the originating application or seeking summary dismissal of the application or summary [sic] be listed for hearing before Perry J at 10:15 am on Thursday 5 February 2015. 10 Pursuant to these directions, on 29 December 2015 Ms Picos filed an affidavit affirmed by her on the same day deposing to having lodged a written complaint online to the AHRC that set out factual allegations against police officers said to be members of the AFP. 11 On 8 January 2015, Ms Picos filed a statement of claim. 12 Ms Picos filed written submissions on 27 January 2015, entitled "Applicants First Legal Submissions" in which she argued that she had made a complaint, the complaint had been terminated and the Court had jurisdiction. 13 On 2 February 2015, Ms Picos made a further application for leave to amend the relief sought in the originating application to $16 billion and an injunction requiring the AFP to investigate alleged fraud by the Queensland Registrar of Titles, the Commonwealth Bank of Australia and a firm of lawyers in relation to an alleged transfer of title over land located in Queensland. That application was supported by an affidavit sworn by Ms Picos on 5 February 2015 and was filed on the same day. In her affidavit, Ms Picos deposes to having commenced proceedings in the Supreme Court of the ACT against the Commonwealth Bank of Australia on 12 May 2014 in relation to the transfer seeking $15 billion (listed to be heard in February 2015). She also alleges that a caveat against the property expired as a consequence of the AFP removing her from her Barton office on 11 July 2014, which matters are said to be pleaded also in the ACT Supreme Court proceedings. 14 The AFP filed written submissions on 3 February 2015 in support of its application for summary dismissal of Ms Picos' application on jurisdictional grounds and in opposition to Ms Picos' application to file an amended originating application to add the claims for trespass and assault.
2.2 The hearing on 5 February 2015 15 In line with the directions by Bennett J, the five matters to which I have referred were listed before me on 5 February 2015, with those in Seven West Media and Hyatt Hotel Canberra (NSD 23 of 2015) being listed first for mention and directions respectively. After inquiring of counsel in these matters and the two Servcorp matters about likely timing, I stood this matter down, together with the Sydney Local Health District matter, to not before 11.30am. 16 However, at the conclusion of the directions hearing in the Hyatt Hotel matter, Ms Picos decided that she would not remain and packed up her documents and left the courtroom. Before she took that course, I urged her to remain and avail herself of the opportunity to appear and respond to the interlocutory applications listed before me: see below at [19]. She declined to do so. After Ms Picos departed, I adjourned the list for a short time in order to give Ms Picos the opportunity to reconsider her position and return to the courtroom. 17 In the circumstances, when this matter was later called on, I asked the court officer to call the matter outside the courtroom, which she did. Upon there being no appearance by Ms Picos, counsel for the respondent did not consider there was any reason why the hearing should not proceed as listed. I also consider that this was the appropriate course to take. Ms Picos was well aware of the fact that the application for summary dismissal of her application was listed and had been aware of that since the directions hearing on 12 December 2014. She was also well aware of the issues and had filed her evidence and submissions. It was her choice not to remain for the hearing despite it being clear from my comments to her that the other matters would still proceed. In this regard I note that it is well established that procedural fairness requires only the provision of an opportunity to be heard and does not require that the person to whom it is extended take advantage of that opportunity: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42] (Giles JA, with whom the remainder of the Court agreed). I also took into account that Ms Picos did not seek to have the matter adjourned before she decided to leave the courtroom and that the respondents were ready to argue the matter with counsel in attendance. Furthermore, if the respondents were correct in their objection on jurisdictional grounds, then the matter must be dismissed and it was better for that to occur sooner rather than later with consequential escalation in costs.
4.1 The jurisdictional issue 33 The AFP seeks summary dismissal on the ground that the Court has no jurisdiction to entertain these proceedings. Specifically, the AFP contends that proceedings may be instituted in the Federal Court for sexual harassment or discrimination contrary to the SD Act only where the conditions in s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) have been met, that is, where a complaint to the AHRC has been terminated. Ms Picos, however, submits that the Court does have jurisdiction on the grounds that that precondition has been met.
4.2 Statutory preconditions for commencing proceedings in the Federal Court for a contravention of the SD Act 34 Part IIB of the AHRC Act establishes a regime for redress for "unlawful discrimination". "Unlawful discrimination" is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2004, Part 2 of the Disability Discrimination Act 1992, Part II of the Racial Discrimination Act 1975, and, relevantly, Part II of the SD Act (including any conduct which is an offence under s 94) in which s 28G appears (collectively, the Unlawful Discrimination Laws). Section 28G makes it unlawful for a person to sexually harass another person in the course of providing, seeking or receiving goods or services. 35 Part IIB of the AHRC Act prescribes a number of steps: a) lodging a written complaint with the AHRC alleging unlawful discrimination (s 46P); b) referring the complaint to the President of the AHRC (s 46PD); c) requiring the President to inquire into the complaint and attempt to conciliate it (s 46PF(1)); d) providing that the President may terminate a complaint on a number of grounds including that the alleged unlawful discrimination is not unlawful discrimination, the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred, or the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (s 46PH); e) affording the affected person the right, where a complaint is terminated and the President has given notice, to apply within 60 days to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1) and (2)); f) limiting the right to pursue a claim to unlawful discrimination through the courts to unlawful discrimination which is the same, or the same in substance, as that which was the subject of the terminated complaint, or arises out of the same acts, omissions or practices (s 46PO(3)); g) conferring power on the court to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (s 46PO(4)). 36 It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] RD Nicholson J (Bropho) and French v Gray (2013) 217 FCR 404; [2013] FCA 263 at [149]-[151] Besanko J (holding that Re East; ex parte Nguyen (1998) 196 CLR 354 at [26], [31]-[32] continued to apply notwithstanding removal of the complaint procedure from (in those cases) the RDA and its re-enactment in Part IIB of the AHRC Act). In other words, a contravention of s 28G of the SD Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act. As Katzmann J held in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78]-[79]: Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 [of the SD Act] and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32]. It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as [sic] the case for a breach of s 94 of the SDA is not available. 37 Her Honour's decision in this respect was upheld on appeal in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 at [71] which held that neither the AHRC Act, nor the SD Act, created or gave rise to any common law cause of action for relief. 38 That being so, there is no jurisdiction to hear an allegation of unlawful discrimination under s 28G of the SD Act unless the conditions in s 46PO of the AHRC Act are satisfied: Bropho at [53]. Justice Gleeson reached the same conclusion in dismissing so much of a claim made by Ms Picos as alleged sex discrimination in Picos v Servcorp Limited [2014] FCA 922 at [22].
4.3 Are the statutory preconditions for commencing proceedings in the Federal Court satisfied here? 39 Section 46PO of the AHRC Act provides that: (1) If: (a) a complaint has been terminated by the President under section 46PE or 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. 40 Thus, s 46PO requires both that a complaint has been terminated and that notice has been given of its termination before proceedings may be instituted in this Court. These are, having regard to the matters to which I have already referred, jurisdictional preconditions to the institution of a claim in the courts alleging unlawful discrimination. 41 The AFP contends that Ms Picos has not engaged these processes by lodging any complaint with the AHRC about the conduct of which she now seeks to complain and, therefore, that the jurisdictional preconditions to these proceedings in s 46PO have not been met. 42 Ms Picos, on the other hand, contends that she has made a complaint which has been terminated thereby satisfying the jurisdictional preconditions. 43 First, by her affidavit affirmed on 29 December 2015, Ms Picos deposes that: On 13 July 2014 around 6:00 AM I lodged a written complaint online to the Australian Human Rights Commission pursuant to the Australian Human Rights Act 1986 section 46P … 44 Ms Picos then quotes what she described as the written complaint. It is true that the AHRC Act does not prescribe a process by which a complaint is lodged although it does require that the complaint be in writing. Nonetheless, Ms Picos' evidence as to the contents of her communication with the AHRC, as opposed to her characterisation of that communication, does not in my view establish that she made a complaint. No mention is made in that communication of any intention to make a complaint or indeed to any action or response requested of the AHRC. The so-called complaint comprises eleven numbered paragraphs which make factual allegations only against police officers and as to Ms Picos' actions and feelings allegedly in response. In short, irrespective of Ms Picos' intentions, it was not apparent from the passage quoted from the alleged "complaint" that Ms Picos intended to lodge a complaint under s 46P of the AHRC Act. 45 Nor did the AHRC in fact treat her communication with it as a complaint. Ms Picos gave evidence that the AHRC terminated the complaint pursuant to s 46PH by a letter from the AHRC on 18 July 2014. In the letter, however, the AHRC did not purport to terminate a complaint but stated only that: Dear Miss Picos, I refer to your recent email to the Commission in which you raise concerns about the way you claim you were treated [sic] Australian Federal Police (AFP) officers on 11 July 2014 and to make reference to sexual harassment. I have enclosed an information sheet for you that outlines the Australian Human Rights Commission's jurisdiction to investigate and try to resolve complaints alleging sexual harassment under the Sex Discrimination Act 1984 (Cth) (the SDA). While you referred to sexual harassment in your correspondence it is unclear how the sexual harassment provisions in the SDA could arguably be seen as applicable to this matter. Accordingly, the Investigation and Conciliation Section of the Commission will be taking no further action about this matter at this time. (emphasis added) 46 The tenor of the letter, as the respondent contends, is that the AHRC at this stage was discharging only its function under s 46P(4) of the AHRC Act, namely, to take reasonable steps to provide appropriate assistance to a person where it appears to the Commission that the person wishes to make a complaint and requires assistance to formulate it. Thus, the letter refers only to Ms Picos raising concerns, encloses the AHRC information sheet outlining its jurisdiction, and raises in a tentative way a query about whether her allegation could constitute sexual harassment under the Act. This does not purport to be a notice of termination and is not, in my view, properly construed as such. 47 It follows that the conditions in s 46PO for the institution of proceedings in the Federal Court alleging unlawful discrimination contrary to the SD Act have not been satisfied and this Court has no jurisdiction to entertain the proceedings.
Picos
Australian Federal Police
Picos v Hyatt Hotel Canberra [2015] FCA 101 Picos v Servcorp Limited [2014] FCA 922 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Re East; ex parte Nguyen (1998) 196 CLR 354 Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 SZFDE v Minister for Immigration (2007) 232 CLR 189
(2011) 242 CLR 283
(1986) 161 CLR 543
(2000) 205 CLR 377
(2012) 247 CLR 486
(2013) 217 FCR 404
(2001) 118 FCR 308
(2000) 104 FCR 564
(2000) 201 CLR 488
(1983) 151 CLR 288
(2011) 244 CLR 427
(1969) 122 CLR 546
(1998) 196 CLR 354
(1986) 161 CLR 342
(2001) 206 CLR 128
(1999) 198 CLR 511
(2007) 232 CLR 189
[1998] HCA 73
[2000] HCA 63
[2011] HCA 48
[2011] HCA 2