Rindeklev v Comcare

The nature of the claim that Ms Rindeklev seeks to advance 7 Ms Rindeklev has formulated her application in this Court by reference to five alleged errors by the Commission. However, it is apparent from the remedies sought by her that Ms Rindeklev seeks to invoke the jurisdiction conferred by the Act upon this Court by s 46PO to entertain in its original jurisdiction an application alleging unlawful discrimination. As has been explained, Ms Rindeklev cannot commence those proceedings as of right. She must first obtain leave to do so. If leave is given, then her application proceeds as a substantive claim in this Court. It does not proceed as an application for review. Therefore, on an application for leave, this Court is not concerned with whether there has been error by the Commission (save to the limited extent that a failure by the Commission to deal adequately with a complaint may be a matter that supports the grant of leave). Rather, this Court is concerned with forming its own view as to the merits of the claim that is sought to be advanced. 8 Further, the unlawful discrimination alleged in the application to this Court must be the same (or the same in substance) as that which was the subject of the terminated complaint or must arise out of the same (or substantially the same) matters the subject of the terminated complaint: s 46PO(3). 9 Regard to the form of application filed by Ms Rindeklev in this Court reveals that she seeks to allege unlawful discrimination by Comcare in uploading the witness statement with the offending paragraph to the Tribunal's portal and in persisting to seek to rely upon the statement in the proceedings before the Tribunal in circumstances where (so Ms Rindeklev alleges) it was not relevant. 10 The lack of relevance is said to arise in the following circumstances. Ms Rindeklev advanced two applications in the Tribunal. The first concerned when she worked for Centrelink. It was then that she worked with the deponent to the witness statement and, for a time, was in a relationship with him. The second concerned events which occurred much later when she was working for Child Support. She accepts that the witness statement may have relevance to the allegations the subject of the first application. However, she says that the events the subject of the second application were unrelated to the first because there was a five-year gap between the events the subject of the two applications and they 'involved a different agency with different staff'. 11 Both parties referred to the reasons of the delegate of the President in support of their contentions. Otherwise, there was no evidence adduced on the leave application. Therefore, there is no material before the Court for the purposes of the leave application which would enable the Court to form any view as to whether there is a reasonable basis for the claim by Ms Rindeklev that the offensive paragraph in the witness statement was irrelevant to the second application. 12 Part of the complaint that Ms Rindeklev has raised concerning the reasons given by the Commission for terminating her complaint is an alleged failure by the Commission to address her claim that the offensive paragraph was not relevant or needed for Comcare to respond to the second application. 13 In those circumstances, in the absence of evidence, it seems to me that the application for leave must be approached on the basis that there is a reasonable basis for that part of the complaint made by Ms Rindeklev which is to the effect that the offending material was not relevant to the second application despite Comcare maintaining that it was relevant.

Relevant events before the Tribunal 14 Before the Tribunal, Ms Rindeklev withdrew the first application. She says that she did so to avoid having to confront the witness who had provided the statement and deal with the matters that he had raised. However, as to the second application, she sought to proceed on the basis that the witness statement was excluded. On her case, it was only when the Tribunal did not allow that course and instead proposed procedural orders to deal with her concerns, that she withdrew the second application rather than submit to what she says was a course of sexual harassment by Comcare in seeking to rely upon the offensive paragraph. 15 Ms Rindeklev alleges in her application to this Court that the statement was uploaded 'with some intent to intimidate'. However, the facts relied upon to support that proposed claim in this Court do not extend beyond the act of uploading the statement and maintaining before the Tribunal that the statement was relevant. That is to say, there is no allegation to support a claim of intention to intimidate. In particular, there is no claim that Comcare (or its lawyers who acted in the Tribunal proceedings) knew that the paragraph in the statement was irrelevant and yet chose to include it. An allegation of that kind would be a serious one because it would allege professional misconduct. It would require a proper basis. Significantly, in the application to this Court for which she seeks leave, Ms Rindeklev also says that 'Comcare thought' the offensive paragraph was relevant. So, it is evident that Ms Rindeklev does not allege that the statement was sought to be relied upon by Comcare knowing that it was irrelevant. Finally, the complaint before the Commission was to the effect that it was Comcare's persistence in seeking to rely upon the statement after Ms Rindeklev had questioned its relevance that was said to amount to sexual harassment and intimidation. It did not rise beyond an allegation of that character. 16 In the above circumstances, there is no additional conduct beyond reliance by Comcare upon the statement in the Tribunal proceedings after Ms Rindeklev maintained that it was irrelevant that is said to amount to unlawful sexual harassment. 17 It appears that Ms Rindeklev's real complaint concerning what occurred before the Tribunal is to the effect that Comcare is not allowed to point to what the Tribunal did procedurally as an answer to her claim. She says that Comcare's conduct in uploading the statement and seeking to rely upon its contents despite her (allegedly valid) objection on the basis that it was not relevant was sexual harassment and it was no answer for Comcare to say that it thought the offending paragraph was relevant and therefore had some form of 'objective utility'. 18 Ms Rindeklev also claims that the conduct of Comcare in seeking to rely on the affidavit was itself contrary to other obligations that it had towards its employees when it came to rehabilitation of public servants with workplace injuries. These additional matters can be put to one side. The application that Ms Rindeklev seeks to pursue is a claim that Comcare has engaged in sexual harassment contrary to the Sex Discrimination Act. It is only that claim with which the Court is concerned on the present application for leave.

The alleged sexual harassment 19 So, in the circumstances described above, the conduct that Ms Rindeklev says amounts to sexual harassment is the conduct of Comcare (by its lawyers) in submitting the witness statement with the offensive paragraph and seeking to rely upon it in the second application in circumstances where, so Ms Rindeklev contends, viewed objectively, the matters in that paragraph were not relevant (Comcare's Conduct). Further, for reasons I have explained, for present purposes her allegation must be approached on the basis that there is a reasonable basis to support her claim that the matters in the offending paragraph were irrelevant to the proceedings before the Tribunal but Comcare (by its lawyers) thought they were relevant. 20 In oral submissions, at times, Ms Rindeklev tended to treat Comcare's Conduct as being equivalent to Comcare (by its lawyers) making the statements attributed to the witness in the offending witness statement. She also referred to Comcare as having encouraged or procured the offending statement. Of course, it may be accepted that a forensic decision was made by Comcare's lawyers to include the offending paragraph in the statement that was uploaded. However, that is not the same as attributing the statement in that paragraph to Comcare (by its lawyers) such that they might be treated as themselves having said the things in the offending paragraph. 21 Nor was there any basis put before the Court for some form of claim that Comcare (by its lawyers) encouraged or procured the witness to say what was in the statement (as distinct from recording his account to that effect) or that Comcare itself engaged in some act for which it might be liable or that Comcare instructed or induced its lawyers to present the witness statement. Ordinarily, a decision of that kind would be a forensic decision to be made by the lawyers in the discharge of their professional obligations after receiving the views of their client. 22 Despite the reference by Ms Rindeklev during the course of oral submissions to the direct liability that may arise under s 105 of the Sex Discrimination Act for a person who 'causes, instructs, induces, aids or permits another person to do an act that is unlawful' under the legislation, no claim of that kind was made to the Commission. Although Ms Rindeklev alleged that Comcare had engaged in sexual harassment it was a claim based upon Comcare's responsibility for the acts of its lawyers. For the purposes of its submissions opposing leave, Comcare did not dispute its vicarious liability for the conduct of its lawyers.

The reasons by the President's delegate 23 A delegate of the President of the Commission gave the following reasons for concluding that the complaint was misconceived or lacked substance: (1) To the extent that the complaint alleged that Comcare has engaged in conduct in the course of providing goods or services as provided in s 28G of the Sex Discrimination Act it was misconceived because submitting a witness statement to the Tribunal was not an act falling within the scope of that provision. (2) It was arguable that the complaint alleged that Comcare had engaged in conduct in the course of performing a function under a Commonwealth law or as otherwise covered by s 28L of the Sex Discrimination Act. (3) The information before the Commission did not sufficiently support a claim of sexual harassment by Comcare because: (a) it was unclear how the act of providing a witness statement to the Tribunal would be considered to be an unwelcome sexual advance or an unwelcome request for sexual favours by Comcare; and (b) while the comments in the offensive paragraph of the statement (made by the 'co-worker') were arguably unwelcome they were not comments 'made about [Ms Rindeklev] or to [Ms Rindeklev] by Comcare but rather, are understood to be comments by the co-worker in response to allegations … made about him in the context of [Ms Rindeklev's] workers compensation claim(s)' (original emphasis).

Matters to be considered in decision whether to grant leave 24 As explained by Mortimer J (as the Chief Justice then was) in James v WorkPower Inc [2018] FCA 2083 at [31]-[32], the interests of justice is a governing consideration in exercising the discretion whether to grant leave; and weight must be given to the purpose for which the leave requirement was imposed, namely to provide a filter. 25 In a further passage that has since been applied frequently, her Honour identified whether the claims made were reasonably arguable and were, at least, not fanciful (an assessment made having regard to the purpose of precluding complaints 'whose merits are disproportionate to the time and resources likely to be consumed by dealing with them') as being appropriate for consideration when deciding whether to grant leave to commence an application in this Court: at [37]. 26 However, her Honour's further statement at [39] to the effect that it would be a misunderstanding of the task, in any case, to embark upon a detailed consideration and determination of the merits now must be qualified by recognising that there may be circumstances where a detailed evaluation of the merits is appropriate and it also may be appropriate to determine an arguable question of law if an answer against the applicant would be determinative: Weir v Telstra Limited [2023] FCAFC 196; (2023) 301 FCR 261 at [58]-[59] (Collier ACJ, Rangiah and Thomas JJ). 27 So, it may be appropriate for the Court to undertake a more detailed evaluation of the merits especially where an evaluation of the merits does not require the resolution of contested evidence. 28 The following range of 'other permissible considerations' as identified by her Honour (at [38]) has been consistently applied by judges on this Court: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party.

Comcare's principal contentions 29 Having regard to the way in which Comcare's contentions were presented orally and concessions properly made by counsel for Comcare, the principal contentions advanced by Comcare as to why leave should not be granted were: (1) Comcare's Conduct could not satisfy the definition of sexual harassment; and (2) Comcare was protected from suit by reason of the doctrine of witness immunity. 30 Those two contentions amounted to legal propositions which, if accepted, would mean that the application that Ms Rindeklev seeks to bring could not succeed. Further, an evaluation of the merits of those contentions did not depend upon an evaluative assessment that might be aided by hearing a more detailed account of what had occurred. Rather, they amounted to legal propositions which were said to stand in the way of Ms Rindeklev's claims. If either contention is established then it must follow that the proposed application lacks sufficient merit to support the grant of leave. In those circumstances, it is appropriate for the merits of each of Comcare's principal contentions to be considered closely.

Contention 1: Comcare's Conduct could not satisfy the definition of sexual harassment 31 It is unlawful for a person to sexually harass a person in the contexts described in the Sex Discrimination Act: see s 28B(1) of that Act. As was explained by Perram J (Collier and Reeves JJ agreeing) in Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; (2020) 277 FCR 511 at [20]-[26], there are essentially three elements to what constitutes sexual harassment all of which must be established, namely: (1) Whether there has been a sexual advance, a request for sexual favours or other conduct of a sexual nature, being a question of fact for the Court to determine applying the defined legal standard expressed in that language. (2) Whether the conduct is 'unwelcome' to the person allegedly harassed, being a question of fact for the Court to determine which is subjective and which turns only on the person's attitude to the conduct at the time. (3) Whether a reasonable person, in the circumstances (including those specified), would have anticipated the possibility that the person would be offended, humiliated or intimidated. 32 The specified circumstances to be taken into account include, but are not limited to: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. (see s 28A(1A) of the Sex Discrimination Act) 33 Comcare's submissions focussed upon the first element. It said that it was not arguable that the filing of the witness statement with the offending paragraph in the tribunal proceeding could have been sexual in nature. 34 The statutory concept of unwelcome conduct of a sexual nature is of broad import and 'should not be read down or confined by reference to limits or restrictions which do not appear in the statute': Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; (2021) 105 NSWLR 403 at [35] (Bell P and Payne JA, McCallum J agreeing - noting that their Honours were concerned with like terminology in s 22A of the Anti-Discrimination Act 1977 (NSW)). As their Honours further explained at [101]: As to whether as a matter of objective fact particular conduct meets the description of 'other unwelcome conduct of a sexual nature', context is everything. The meaning of language changes over time. Language falling within the concept of 'other unwelcome conduct of a sexual nature' may change over time. Societal norms, including the common understanding about what is and is not conduct of a sexual nature, change. Analysing decisions from 20 years ago about what was or was not conduct of a sexual nature is fraught with risk … 35 It may be possible for a corporation to engage in sexual harassment by means of a communication attributable to the entity rather than to an individual for whose acts the corporation is responsible: Weir v Telstra Limited at [118]. 36 The filing of the witness statement and the taking of steps to seek to rely upon the statement in the proceedings is accepted to be the act of Comcare (by its lawyers). It was conduct that lacked any contextual aspect to support a claim that it is sexual in nature. Both by reason of its character and context, it is depersonalised. Further, it is not conduct that involves acting in a sexual way or which involves a form of communication that might be described as containing sexualised or gender-based insults or taunts. It is conduct about sexual matters, but the mere act of uploading the statement and seeking to rely upon it for the purposes of the Tribunal proceedings is not sexual in nature. Even if, as Ms Rindeklev contends, the statement was irrelevant, there is no suggestion as to how that (disputed) aspect, as a contextual matter, might support a conclusion that the conduct complained of was of a sexual nature. 37 It may be accepted that Ms Rindeklev found the inclusion of the offending paragraph unwelcome and, for present purposes, it may be accepted as arguable that a reasonable person in Comcare's position would have anticipated that Ms Rindeklev would be offended and humiliated by the filing of witness statement with content of that kind. However, those aspects alone do not make the conduct sexual harassment. 38 For those reasons, I accept Comcare's first principal contention.

Contention 2: Comcare was protected from suit by reason of the doctrine of witness immunity 39 There was no suggestion by Comcare that the issue of immunity was raised before the Commission as a reason why the claim by Ms Rindeklev was misconceived or lacking in substance or both. In those circumstances, Ms Rindeklev objected to the point being taken as a reason why leave should be refused. In considering whether a claim has sufficient merit that leave should be given to advance the claim despite it having been terminated on the basis that it was misconceived or lacking in substance, this Court is not bound by the reasons of the President's delegate. Further, if leave were to be given then Comcare would be able to raise an immunity in answer to the claim. 40 For those reasons, I am satisfied that it is appropriate to consider the merits of the immunity claim for the purposes of considering whether to grant leave. 41 Ms Rindeklev submitted that there could be no immunity by reason of the terms of s 106 of the Sex Discrimination Act which is concerned with vicarious liability. Relevantly for present purposes, s 106 provides, in effect, that a person is liable for the acts of the person's agent that are unlawful under the legislation unless it is established that the person took all reasonable steps to prevent the agent from doing acts of that kind. The submission seemed to be to the effect that a claim based upon witness immunity could not apply inconsistently with that express provision. As Comcare's lawyers were its agent then the terms of s 106 meant that it was liable for conduct of its lawyers that was unlawful under the legislation. In effect, the submission was that s 106 excluded the common law immunity from operating. 42 As to whether witness immunity applies to proceedings in the Tribunal, s 60(2) and (3) of the Administrative Appeals Tribunal Act 1975 (Cth) provide: Barristers etc. (2) A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. Witnesses (3) Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court. 43 I do not construe s 106 of the Sex Discrimination Act as impliedly excluding any reliance upon the immunity. A construction of that kind would require the general terms of s 106 to be construed as overriding the specific terms of s 60 of the Administrative Appeals Tribunal Act. 44 The nature of witness immunity was explained in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39] (Gleeson CJ, Gummow, Hayne and Heydon JJ): From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit … (footnotes omitted) 45 By its submissions, Comcare has raised the immunity as a defence that it would advance to the claim. 46 There was no suggestion that any recognised exception to the application of the immunity may apply. None is raised by the materials. 47 Therefore, the immunity applies to protect the witness in the present case. It would extend to any person who is alleged to be vicariously liable for the conduct of the witness: Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at [115] (Beazley JA, Mason P and Young CJ in Equity agreeing). However, Ms Rindeklev does not claim that Comcare's liability arises because of responsibility for the conduct of the witness. Rather, as has been explained, her case is that Comcare is liable for the actions of its lawyers in seeking to rely upon the witness statement despite its objective irrelevance. Those actions are said to be distinct from those of the witness in providing the statement. 48 Comcare's lawyers would have immunity when it came to their actions that were preparatory steps to the making of the witness statement: Watson v M'Ewan [1905] AC 480 at 487 (Earl of Halsbury LC). Further, if the nature of the case to be made against Comcare depended upon proof of some basis for liability on the part of the witness then proceedings against a party said to be liable for that conduct would be covered by the immunity: Griffiths at [120]. However, as has been explained, Ms Rindeklev's case is not of that kind. She makes no complaint about what the witness has said. She alleges no wrongdoing by the witness (which is not to say that she accepts the truth of that evidence). Rather, her complaint is about the conduct of Comcare (by its lawyers) in seeking to rely upon parts of the statement when (on her case) they were objectively irrelevant. It is a complaint that does not depend upon any alleged misconduct by the witness. 49 Important issues arise where a claim of witness immunity is raised in answer to a claim formulated in that way. They appear to intersect with aspects of advocate's immunity, especially given the focus of the claim by Ms Rindeklev upon conduct before the Tribunal in pressing reliance upon the statement. I was not referred to any authority dealing with issues of that kind, nor have I been able to find any such authority. In those circumstances, given my conclusion concerning Comcare's first principal contention 1, I prefer to express no concluded view on its second principal contention.

Other matters 50 Comcare submitted that other matters supported the refusal of leave. Given the conclusions I have reached as to the first of Comcare's principal contentions it is not necessary or appropriate to consider those other matters. They would have to be balanced with a view about the merits that would have to be assumed contrary to the conclusions I have reached. The conclusion that the proposed application lacks merit means that leave ought to be refused.

Conclusion and orders 51 For those reasons, leave must be refused and the proceedings dismissed. Comcare sought costs but no oral submissions were directed to the question of costs. In those circumstances, I will make orders allowing for further submissions as to appropriate costs orders and, subject to further order, will deal with that aspect on the papers. 52 Finally, in the course of the hearing of the application for leave, counsel for Comcare raised whether it might be appropriate for some form of non-publication order to be made. An order of that kind had been made by the Tribunal. However, Ms Rindeklev made clear that she did not seek any suppression order or confidentiality order. Amongst other things she said she did so on the basis of her view that the conduct of Comcare should be out in the open. It was made clear to Ms Rindeklev that the consequence would be that these reasons would need to include the paragraph in the witness statement and the reasons would be publicly available. Ms Rindeklev then confirmed that she did not support the making of a suppression order. In those circumstances, I was not persuaded that the order should be made.

A final observation 53 Courts and tribunals must regularly balance the public interest in the open administration of justice on the one hand with the interest of individuals participating in that process on the other. The Tribunal retains the authority to regulate its own processes when it comes to the contents of witness statements and the extent to which matters in those statements may be made available to the public. Further, lawyers are subject to professional obligations when it comes to material advanced through witnesses: see, for example, r 21 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) and Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200-201 (as to abuse of privilege by introducing damaging irrelevant material into a proceeding). As has been mentioned, there was no basis before the Court upon which any view could be expressed as to the relevance of the paragraph in the witness statement. However, it should be made clear that it is not the case that there would be no consequence in any case where damaging irrelevant material was sought to be introduced. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.