Orders sought in respect of the reply
99I turn now to consider the defendants' application to strike out parts of the reply. Ms Styles' claim against the partners of Clayton Utz invokes section 106(1) of the Sex Discrimination Act , which (relevantly) creates vicarious liability in an employer for breaches of the Act on the part of its employees if the relevant acts were done "in connection with the employment of the employee".
100Sub-section 106(2) creates an exception to the vicarious liability created by sub-section (1), as follows:
Sub-section (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
101Clayton Utz denies that any of the conduct complained of was done in connection with the employment of the people in question. In the alternative, Clayton Utz has pleaded, by way of defence to Ms Styles' claims, that it took all reasonable steps to prevent its employees from doing acts of the kind alleged by her in the statement of claim.
102By way of reply to that defence, Ms Styles has pleaded in paragraph 5(i) of her reply that the defendant:
failed to prevent the existence in the Sydney office of a workplace which was hostile to women.
103The plaintiff has supplied a series of particulars in support of that contention raising issues and events that fall well outside the scope of her specific sexual harassment allegations. Clayton Utz seeks an order striking out paragraph 5(i) in its entirety and, alternatively, an order striking out some of the particulars supplied in support of that contention.
Objection for want of jurisdiction
104The first ground on which that order is sought is that paragraph 5(i) of the reply is outside the jurisdiction of this Court by reason of the operation of section 46PO(3) of the Australian Human Rights Commission Act . That section provides:
(3) The unlawful discrimination alleged in the application [to the Federal Court]:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
105With great respect to the careful submissions put on this issue on behalf the defendants, I think the objection on that ground is misconceived. It was made plain during argument on behalf of the plaintiff that she did not seek to expand her complaint of sexual harassment by reference to any of the matters raised in the reply, but only to respond by way of defeasance to the defendants' contention that they fall within the exclusion under section 106(2). It seems to me that, as a matter of logic and fairness, a complainant met with the contention that an employer took all reasonable steps to prevent its employees from doing acts of the kind complained of should be permitted to point to events outside the scope of her own complaint to rebut that contention. In my view, nothing in section 46PO says otherwise. That section plays an important role in containing the scope of the matters that may be litigated in exercise of the Federal jurisdiction conferred by the Australian Human Rights Commission Act . However, I do not think it speaks to the scope of matters that may be raised in defeasance of a defence under section 106(2).
106The defendants' separate contention that specific particulars relied upon by Ms Styles fall outside the jurisdiction of the Court must be rejected for the same reasons.
"Hostile work environment" as a discrete cause of action
107The defendants submitted that the reply should be struck out on the further ground that the existence of a "hostile work environment" is in itself a form of discriminatory conduct which is recognised as a separate cause of action. For that reason, it was submitted that the existence of a hostile work environment cannot be pleaded in a reply. The defendants noted that a plaintiff may properly plead factual matters in response to a defence but that a reply cannot be used to raise new allegations, since to do so deprives a defendant of the opportunity to plead a defence to those allegations.
108The plaintiff responded by reiterating that it was not sought to rely upon the allegation of a hostile work environment as a new allegation of sexual discrimination as a discrete cause of action but only in defeasance of the contention that the defendants took all reasonable steps to prevent the relevant employees from doing acts of the kind complained of. In short, she asserts that the existence of a workplace which was hostile to women, as allegedly demonstrated by the particulars to the reply, demonstrates a failure to take all such reasonable steps.
109In the context of those competing contentions, both parties referred extensively to authority as to the existence of a "hostile work environment" as a form of discriminatory conduct. I do not think it is necessary to have regard to the jurisprudence on that issue in order to determine the present dispute, which (as made plain by the plaintiff) is essentially factual. The critical task is to consider whether the matter pleaded is capable of rebutting the defence and whether the individual particulars in support of that matter should be permitted to stand.
Consideration of individual particulars - statutory context
110In considering those issues, it is appropriate to have regard to the statutory regime for addressing allegations of sexual harassment and victimisation provided for in the Sex Discrimination Act and the Australian Human Rights Commission Act and also to the procedural regime that governs these proceedings, including the mandatory consideration of sections 56 to 58 of the Civil Procedure Act 2005. The Court should approach its task on the assumption that the statutory context in which this issue falls to be determined permits of a coherent analysis.
111My consideration of the relevant legislation has led me to the conclusion that I should approach this issue on the following premises. First, section 46PO of the Australian Human Rights Commission Act speaks only to the causes of action upon which the plaintiff may rely and does not operate so as to deprive the Court of jurisdiction to address conduct outside the scope of the original complaint where it is sought to be relied upon in defeasance of a defence under section 106(2). There are, however, strong indications both in the Australian Human Rights Commission Act and in the Civil Procedure Act that the matters litigated should be contained within sensible scope by reference to conduct complained of.
112Thus section 11 of the Australian Human Rights Commission Act imposes a duty on the Commission to ensure that its functions are performed efficiently and with the greatest possible benefit to the people of Australia. The Court is under a similar duty under section 56 of the Civil Procedure Act , in that case framed by reference to an obligation to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings.
113Although there is no express constraint on the scope of matters that may be raised in a complaint to the Commission, section 46PH of the Australian Human Rights Commission Act provides that the Commission may terminate a complaint on the grounds that it was lodged more than 12 months after the alleged unlawful discrimination took place, suggesting a legislative intention that the Commission should confine its attention to current allegations. Section 46PA of the Act confers a right on a complainant to amend a complaint at any time with the leave of the President but such leave may not be given after the complaint is terminated: section 46PH of the Act. That suggests, consistently with section 46PO, a legislative intention to contain the scope of issues that may be litigated in the Court. Finally, section 46PO, although not directly applicable to matters properly raised by way of reply, also evinces a clear intention that litigation following the termination of a complaint is not at large.
114Thus although it is important to have regard to the objects of the Sex Discrimination Act including the object of eliminating, so far as is possible, discrimination against persons on the ground of sex, the attainment of that object is to be achieved in the context of the Court's duty to contain litigation within limits that are proper having regard to the overriding purpose. The Australian Human Rights Commission Act creates statutory remedies for individuals aggrieved by alleged breaches of the Act. The pursuit of such remedies is no warrant for a roving inquiry into all of the conduct of a defendant. I accept, as noted on behalf of the plaintiff, that by pleading a defence under section 106(2) of the Act, an employer opens an inquiry into its own conduct but the litigation of that issue must nonetheless be regulated by reference to the real issues in the proceedings.
115Against those considerations, I have concluded that it is open to a plaintiff, as a matter of logic, to respond to a defence under section 106(2) with the factual contention that a failure to take reasonable steps is to be inferred from a failure to prevent the existence of a workplace hostile to women. It follows, in my view, that paragraph 5(i) of the reply is not liable to be struck out for want of jurisdiction. However, the Court must be vigilant to ensure that the matters brought forward in support of such a contention are within the scope of the real issues raised by the complaint and the defence to the complaint.
116The real issues in the present case revolve around Mr Izzo's conduct in talking about his sexual relations with Ms Styles, the contention that other employees saw fit to repeat those statements to Ms Styles or to interrogate her as to their truth, the acrimony that subsequently developed between Mr Izzo and Ms Styles (which allegedly saw him directing terms of abuse to her) and the intriguing issue of the placement of the photographs. The question of "reasonable steps" within the meaning of section 106(2) is to be judged against prevention of acts of that kind and by reference to the particular employees accused of them by the plaintiff.
117The defendants submitted that, on that analysis, the issues in the proceedings should be confined to the Workplace Relations group. However, as noted on behalf of the plaintiff, some of the people she accuses of unwelcome conduct of a sexual nature (in confronting her as to the truth of the sexual rumours) were people outside that group.
118It was submitted on behalf of Ms Styles that the defence opened the defendants to a broad inquiry by reason of the scope of the pleading itself. Paragraph 2(ii) of the defence asserts:
[The defendants] took all reasonable steps to prevent its employees from doing acts of the kind alleged by [the plaintiff] in the statement of claim and [the defendant] relies on section 106(2) of the Sex Discrimination Act .
119To the extent that the defence, so pleaded, purports to relate to steps taken in respect of all employees of the firm, it travels beyond the scope of what is required to be established under section 106(2), which focuses specifically on the employee whose act has potentially exposed the employer to vicarious liability. Plainly, the defence must be understood in that narrower sense.
Particulars pleaded in the original reply
120On that premise, I turn to consider the individual particulars relied upon. The first three are pleaded in the reply itself. They are:
5(i) failed to prevent the existence in the Sydney Office of a workplace which was hostile to women;
Particulars
The workplace was hostile to women in that within the Sydney Office the Respondent:
(a) failed to ban the existence of a Facebook group called the " Clayton Utz Workplace Relations (Sydney) Whorebags ," subtitle: " CU Dirty Blvd " and offer counselling to its members;
(b) allowed the existence of the Photo Montage and the Framed Photo in the Workplace Relations Group;
(c) victimised the Applicant on the basis that she had made a complaint of sexual harassment;
121In my view, each of those allegations as an allegation of fact is capable of being taken into account in determining whether the defendants took all reasonable steps to prevent harassment of the kind alleged by Ms Styles. Particular (a) was not the subject of individual objection by the defendants. It is doubtful whether, on its own, that contention would rebut the defence but that is not the test. The particular relates specifically to the Workplace Relations Group and the tone of communications between people in that group. It should be permitted to stand.
122In my view, the allegations concerning the photo montage and the framed photo are in the same category. The defendants do not contend that Ms Styles' allegations concerning those matters are liable to be struck out as disclosing no reasonable cause of action for sexual harassment. It follows, in my view, that Ms Styles should be permitted to rely on her version of those events as matters to rebut the defence (although it is doubtful whether it was necessary to plead those matters by way of reply).
123Particular (c) relating to the alleged victimisation of Ms Styles on the grounds of her complaint of sexual harassment is, in my view, in the same category. It is factually capable of rebutting the defence (but probably did not need to be pleaded by way of reply).
Particular (e): male solicitors who had "difficulty working with women"
124The remaining particulars objected to were supplied in a separate letter dated 30 March 2011 sent by Ms Styles to Clayton Utz (annexure D to the affidavit of Mr Lucas sworn 6 June 2011).
125Particular (e) alleges that the defendants "took no action to address and rectify the difficulty which [two males solicitors in the Mergers and Acquisitions practice group] had working with women solicitors". The two solicitors identified in particular (e) are not among the employees of the defendants alleged to have committed the 12 acts of sexual harassment sued on in these proceedings. It may be acknowledged, however, that four of the employees alleged to have committed acts of sexual harassment (in repeating to Ms Styles statements by Mr Izzo that they had had sex or in asking her whether it was true) were in the Mergers and Acquisitions group at the relevant time.
126The principal vice of particular (e) is that it has a tendency, in my view, to cause both embarrassment (in the pleading sense) and delay in the proceedings. The embarrassment derives from the formulation of the particular itself. The allegation assumes, as a premise, that the two identified solicitors had "difficulty working with women solicitors" but wholly fails to identify any basis for that premise, or what it means. It could entail an enormous variety of matters, not necessarily linked to the kind of conduct sought to be eliminated under the Sex Discrimination Act .
127Ms Chrysanthou (who appeared for Ms Styles on this argument) submitted that, if the import of the contention was unclear, the defendants could have requested further particulars. Leaving aside the inappropriateness of such an approach to the task of giving proper particulars of a claim, that submission crystallises the second vice of particular (e). If permitted to stand, it will plainly protract both the interlocutory steps in preparation for the hearing (including particulars and discovery) and the hearing itself. It will raise the need for two additional employees of the defendants not otherwise involved in the proceedings to defend themselves against the broad contention that they had difficulty working with women.
128I would not shirk from compelling the defendants to take those steps if I thought those issues were properly comprehended within the real issues in the proceedings. In my view, however, even if the allegation that the two male solicitors in question had difficulty working with women were adequately particularised so as to enable the defendants to know the case they have to meet on that issue (which presently it is not), the firm's response to such "difficulties" experienced by two particular men not otherwise implicated in the breaches of the Sex Discrimination Act complained of by the plaintiff is not capable of having any real bearing on the reasonableness of the steps taken to prevent conduct of the kind attributed to the alleged harassers in these proceedings. They are wholly different kinds of allegations. Particular (e) should be struck out.
Particular (f): toleration of sexual harassment by partners
129Particular (f) is that the defendants tolerated and failed to prevent sexual harassment by its male partners. In my view, such an allegation in itself is capable (in theory) of rebutting a defence under section 106(2). However, attention must be paid to the individual particulars relied upon in support of it.
Particular f(i): promotion of a partner against whom a report of sexual harassment had been made
130The first is particular (f)(i), which alleges the promotion of a partner notwithstanding the fact that he had previously been reported for sexual harassment. I was informed at the hearing that the report in question was made in 1993. An obvious difficulty with the allegation is that the existence of a report of sexual harassment does not prove that the sexual harassment occurred. In any event, having regard to the principles stated above, I have concluded that the events of 1993 are so far removed from the real issues raised on the pleadings in the present case that they should not be permitted to form part of the hearing: cf Gama v Qantas Airways Ltd (2006) 195 FLR 475.
Particular f(ii): the job interview
131The second is particular (f)(ii) which relates to a comment allegedly made to Ms Styles by a partner when Ms Styles was interviewed for employment with Clayton Utz on 16 May 2007. The first difficulty with that particular is that it amounts, in terms, to a new allegation of sexual harassment of the plaintiff. In her complaint to the Australian Human Rights Commission, Ms Styles did set out the circumstances of her job interview but they were not characterised at that time as amounting to sexual harassment. Ms Styles has only come to regard the comment in that way in light of information subsequently obtained. That raises a number of complexities. Regrettably, in order to explain them, it is necessary to go into some detail relating to the complaint.
132Although not expressly referred to in the particulars, the context of the new allegation is that, during the job interview, the partner presented a photograph of Ms Styles which he had evidently printed out from her "Flickr" page. It showed her piranha fishing on the Amazon. According to Ms Styles' complaint to the Australian Human Rights Commission, he said " is this you?" , to which she responded that it was. He then said " and let's not even get started talking about Marcus Day!"
133Ms Styles was evidently puzzled by the remark but did not at that time perceive it as unwelcome conduct of a sexual nature. She told the partner that Marcus Day was a good friend of hers from university. The partner gave no explanation for the remark.
134Material obtained by Ms Styles on subpoena in the defamation proceedings (which she is permitted to use for the purpose of these proceedings by reason of orders made earlier this year by Nicholas J) has driven her to infer two alternative possible explanations for the remark, each of which has prompted her now to construe the "Marcus Day" remark as amounting to unwelcome conduct of a sexual nature.
135Shortly after her interview, Ms Styles sent an email to Mr Day, whom she then evidently regarded as a friend, asking whether he or his father knew the partner who had interviewed her. Mr Day forwarded the email to three men including Mr Izzo, prompting an animated exchange as to the curious events of job interview. It is doubtful whether the authors of the emails imagined that they would ever be read by Ms Styles, let alone become an exhibit in legal proceedings. In the course of the email exchanges, Mr Day informed his friends that there is a gay porn star called Marcus Day (he added some lurid detail which it is not necessary to repeat here).
136The email exchange also referred, intriguingly, to an image of Ms Styles evidently available through the search engine, Google. One of the participants in the exchange concluded that a Google image search of "Bridgette Styles" solved the puzzle as to why Mr Day's name had come up in the context of photos during the job interview.
137Extraordinarily, three of the four men who engaged in this unseemly exchange did so through their work email addresses. Ms Styles thus obtained the exchange by means of a subpoena issued to Mallesons. After first reading the exchange, and seeing Mr Day's reference to his gay pornographic namesake, Ms Styles evidently drew the inference (in hindsight) that the partner who interviewed her must have been referring to the gay pornographer during the job interview. I have given very close attention to the email exchange. Whilst I can well understand that Ms Styles may have found its revelations shocking, in my view her inference that the partner in the interview must have been referring to the gay porn star is entirely without foundation and is, indeed, scandalous. The particulars in the reply, insofar as they rest on that inference, should not be permitted to stand.
138A second explanation for the Marcus Day remark in the job interview has evidently occurred to Ms Styles more recently. It appears in her proposed amended and consolidated statement of claim and is considered in that context below.
139The whole of particular (f) should be struck out.
Particular (g): failure to prevent inappropriate sexualised humour and language
140The next particular of the reply is particular (g), which alleges that the defendants failed to prevent inappropriate sexualised humour and language being used by their male employees in respect of female employees. As I understood it, this was put as contributing to a climate in which sexual harassment was more likely to occur.
141Particular (g)(i) of that contention is that, in or about June 2007, a heterosexual male solicitor inducted a new male graduate solicitor into "this culture" by informing him that solicitors could take paralegals home for sex. The defendant's submissions asserted (and it was not disputed) that the comment was taken from an interlocutory decision of the Administrative Decisions Tribunal of NSW in Mitchell v Clayton Utz and Ors [2009] NSW ADT 266 in which the Tribunal refused Mr Mitchell leave to proceed with that (and other) allegations. Whatever the context in which Mr Mitchell evidently sought to complain of the remark, it is stripped of that context in these proceedings. It seems likely that its introduction in these proceedings will import a substantial separate issue, with consequent expansion and delay of the present dispute. The allegation seems to me to be so peripheral to the real issues in these proceedings that it should not be permitted to stand as an allegation in rebuttal of the defence under section 106(2).
142Particular (g)(ii) relates to emails sent by Mr Izzo, evidently to friends outside Clayton Utz. It appears that conduct is alleged to be relevant to his conduct as an employee because the emails were sent from his work email address and related to female employees of the firm. As noted by the defendants, however, it is not asserted that the emails were sent to anyone within the firm, or that Ms Styles was aware of them at the relevant time.
143The emails are no advertisement for male sensitivity; their author evidently no feminist. In one of the emails, Mr Izzo speaks of "crazy single female chicks" who "just need a good **** to get them back to normal". It is difficult to decide whether it is more surprising that the remarks were made at all (after over a century of feminism) or that a lawyer recorded them in an email (after over seven centuries of subpoenas).
144The critical question, however, is whether the existence of the emails is capable of informing a judgment of the alleged failure of the partnership to prevent inappropriate sexualised language in the workplace. Given that the emails are not alleged to have been sent to anyone within the firm, and given further that the critical word (presumably, "fuck") is obscured in the first email by asterisks (so as to avoid the gaze of any electronic gate-keeper), I do not see how the partners of Clayton Utz ought reasonably to have prevented such correspondence. That is not to say that the emails are necessarily irrelevant to any issue in the proceedings, but I to not think they are capable of sustaining the matters pleaded in the reply.
145Particular (g)(iii) relates to an email sent by Mr Izzo on about 9 December 2008, relating to the firm's decision to allow Ms Styles to return to her original group. In the email, Mr Izzo said " they were scared of her so... the pussies in HR (including my superiors here) took her back in her original group. Such a dumb move." The email is said to be an instance of inappropriate sexualised language by reason of the use of the word "pussies".
146Ms Styles states that the word "pussy" is a double-entendre which also refers to a vagina and imputes weakness. I accept that the term "pussy" to denote a weak person probably has a sexualised origin. It may be noted, however, that there is no other sexualised language in the email, and no other instance of that language relied upon. The proposition thus appears to be that a single instance of the use of the term "pussies" to denote weak people in an email (to an unnamed recipient) demonstrates the firm's failure to prevent inappropriately sexualised language in the workplace. I do not think the email is capable of sustaining that contention.
147The whole of particular (g) should be struck out.
148The last particular objected to is particular (h), which alleges that the defendants:
Had a policy of transferring employees who complained about sexual harassment to another group, which policy was communicated to the applicant by Levis in the meeting.
149It must be remembered that the present task is only to determine whether the allegation is capable of rebutting the defence under section 106(2). In my view, a policy of transferring complainants to another group is capable of establishing the existence of a measure of hostility to such complainants such as to rebut the contention that all reasonable steps had been taken to prevent harassing conduct. Particular (h) should be permitted to stand.