Sultana v Spotless Facility Services Pty Limited [2025] FedCFamC2G 437

1. The applicant, Ms Sultana, filed an application on 23 October 2023 alleging contraventions by the respondent, Spotless Facility Services Pty Limited (Spotless), of the Sex Discrimination Act 1984 (Cth) (SD Act) and the Racial Discrimination Act 1975(Cth) (RD Act). In that application she has sought relief under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Attached to the application was a copy of a notice of termination dated 12 September 2023 issued by the Australian Human Rights Commission (Commission) in respect of a complaint made to it on or about 20 June 2023. Because the Commission terminated Ms Sultana's complaint for having been filed more than 24 months after the events she has complained of, an application to the Court alleging unlawful discrimination based on those events may not be made unless it is made with the leave of the Court: ss. 46PH(1)(b) and 46PO(3A) of the AHRC Act.
2. The matter presently before the Court is Ms Sultana's application for, in substance, leave nunc pro tunc to make the application that was filed on 23 October 2023. Spotless has opposed the application for leave.
3. For the reasons that follow, leave will not be granted and the proceeding will be dismissed.

1. Section 46PH of the AHRC Act relevantly provides:

Discretionary termination of complaint

(1) The President may terminate a complaint on any of the following grounds:

...

(b) the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place;

...

1. Section 46PO of the AHRC Act relevantly provides:

46PO Application to court if complaint is terminated

Making an application

(1) If:

(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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.

...

(3) The unlawful discrimination alleged in the application:

(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.

(3A) The application must not be made unless:

(a) the court concerned grants leave to make the application; or

(b) the complaint was terminated under paragraph 46PH(1)(h); or

(c) the complaint was terminated under paragraph 46PH(1B)(b).

1. Section 46PO(3A) was introduced into the AHRC Act on 13 April 2017: items 53 and 58(9) of sch.2 to the Human Rights Legislation Amendment Act 2017. The Revised Explanatory Memorandum to the Bill which became the amending Act, relevantly said in its general outline of the Bill:
   1. Leave of the Court - Item 53 will introduce a requirement that leave of the Federal Court or Federal Circuit Court be granted to make applications alleging unlawful discrimination which were the subject of complaints terminated by the President. ...

...

1. In seeking leave of the court, an applicant will be required to explain why the matter should be allowed to proceed to substantive hearing. This additional step will ensure that allegations the subject of a complaint can only be litigated where there are reasonable prospects of success, limiting unnecessary impositions on time and resources, and avoiding prolonged uncertainty.

...

1. In _James v WorkPower In_c [2018] FCA 2083 Mortimer J said at [37]:

...the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

There may be a range of other permissible considerations including:

(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.

... It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination....

1. However, in not dissimilar circumstances, where a proceeding was brought after some time, it was said by the plurality in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at 592 [19] that:

... the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.

1. In Matthews v Markos [2019] FCA 1827 at [37] Abraham J considered the proper approach to weighing up the various considerations identified in James:

... First, the purpose of s 46PO(3A) in this legislative scheme is, as described by Mortimer J in James v WorkPower Inc at [37], "to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level". Second, whether a matter is reasonably arguable is a consideration, unlike others, which must necessarily be satisfied before leave will be granted. It would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit (in the manner described in James v WorkPower Inc ). Third, if a matter is considered to be reasonably arguable, the other relevant considerations do not fall away. Rather, the weight to be given to each of the relevant considerations will necessarily be case specific. Moreover, the content of each of the considerations referred to in James v WorkPower Inc may inform the significance of other considerations (eg delay may contribute to the assessment of whether a matter is reasonably arguable if it affects the ability to establish the factual basis of the claim, and may also inform the question of prejudice to the respondents).

1. In her application of 23 October 2023, Ms Sultana made an unenumerated group of claims which were expressed as follows:

In March 2012, I went to work in Sydney Women's College which is situated in The University of Sydney, 15 Carillon Ave, Newtown NSW 2042 from Spotless Services.

I had got a shift from Spotless Services to work in the Women's College within University of Sydney as a Kitchen Hand. It was an afternoon Shift sometimes from 4:00pm to 10:30pm. After finishing work, Frank offered a lift to go home with his car.

The person told me that his name was Frank; but I did not know his real name. When I was in the car, the staff member of Spotless Services began to rub my breasts over, and then under my clothes. Then the man started to squash my right and left breasts hardly. I tried to escape from his car, but I could not. Because the man was too strong for me and the door was locked. When the staff member from Spotless Services came to the Chester Ave, Maroubra he parked his car, he pull out my right breast and then kept sucking my right breast's nipple area. Then Frank tried to open his genital area.

I tried to escape from the car but the man was too strong. Then the man from Spotless Services drove his car to [the applicant's address]. At the time, when I was leaving the car, the man pulled down my pants and slapped on backside bottoms both left and right.

After that incidents, I became very trumatised and embrassed. I am suffering for Post Tramutic Syndrome Disorder (POST) since March 2012. In March 2012, I saw the timesheet that I had to sign to get payment from the Spotless services. I started to remember that on the timesheet, may be the name was Franklyn Lagudi. (shorter version was Frank).

In September 2012, Spotless Service terminated my employment without no notice. Since then I was suffering for financial disadvantages and mental stress. I started to work with Spotless Services in 2009 as a Part-time Catering Assistant.

In 2012, Spotless Services did not provide me any training how to deal with sexual abused and misconduct matter. Their managers and supervisors did not care about employees' health and safety.

In 18th of July 2009, I sustained an injury on my neck, right shoulder, and right knee due to a slip and fall accident. The claim number was .... But Spotless Services did not provide me any compensation for that injury. (errors in original)

1. Those grounds, although somewhat abridged, appear to be substantially similar to those alleged in Ms Sultana's complaint to the Commission. Relevantly, the allegations said to be the basis of that complaint and this application are primarily concerned with the conduct of an employee of Spotless Services who, for the most part, has been identified simply by the name "Frank", and at other times somewhat tenuously linked to the name "Franklyn Lagudi".
2. Although "Frank" is not named as a respondent to the application filed on 23 October 2023, the cover page to the application makes reference to a second respondent styled as "Staff member from Spotless Services", presumably intending to reserve a position for "Frank" to be added by name later in the proceeding.
3. Ms Sultana's application did not identify with any particularity which sections of the SD Act or the RD Act were alleged to have been contravened.

1. Other matters contextually relevant to Ms Sultana's complaint were set out in the Commissions' notice of termination, which I summarise by way of background as follows:

(a) in 2009 Ms Sultana commenced permanent part-time employment with Spotless Services, which transitioned to casual employment in 2011;

(b) Ms Sultana claimed that in late 2011 she met another employee of Spotless Services named "Frank" whose full name was unknown to her. They worked around 3 shifts together between January and March 2012;

(c) "Frank" shared with her details of his sex life and suggested to her that he might make her his "girlfriend". She also said that in the course of giving her a lift home:

... Frank began to rub her breasts over, and then under her clothes, before grabbing her hand and moving it toward his groin. She states the car was locked and she felt helpless and did not know how to escape. When they reached her apartment building, she claims Frank unlocked the car, pulled her pants down to her thighs and slapped her backside before she ran inside. Ms Sultana says during the alleged events she attempted to remove Frank's hand and direct him to stop, to no avail.

Ms Sultana states that following the incident, Frank would stare at her in the workplace, making her feel uncomfortable. ...

(d) Ms Sultana claimed that she did not make a complaint (to the Commission) at the time of the various acts complained of because she did not know her rights and entitlements, how to make a complaint or how raise a grievance internally with Spotless Services;

(e) Ms Sultana's employment was terminated by Spotless Services in or around September 2012;

(f) the Commission recorded that Ms Sultana claimed that she had provided extensive details about the identity of Frank including his approximate age, race, height, appearance and marriage status, and had submitted that his identity should have been obvious to the respondent;

(g) the Commission had been unable to notify "Frank" of the complaint against him because Ms Sultana could not provide his surname or any contact details and Spotless Services had been unable to identify him from their own records for the following reasons:

• In 2017, Spotless became a wholly owned subsidiary of Downer EDI Limited (Downer). Downer completed the divestment of its hospitality business, including those contracts operated by Spotless, between 2020 - 2021.
• The time between the most recent alleged conduct and the time the complaint was made to the Commission was at least 10 years and 9 months.
• Spotless has been unable to locate any records or people who could verify the allegations of sexual harassment or sex discrimination described in the complaint.
• It is unable to agree to the allegations and otherwise rejects that it could be vicariously liable for the actions of Frank, who cannot be identified.
• Members of the senior management of Spotless who were overseeing the Human Resources functions of the business at the time of the allegations are no longer engaged by the Spotless or within Downer.
• Spotless was unable to identify any person who could have worked in the business unit at the time of the alleged conduct.
• Even if Spotless were able to identify and contact people who worked in the business at the same time as the complainant, there is a real risk that due to the passage of time, the parties may no longer accurately recall events.
• Spotless does not have access to or otherwise control people or records from the time of the alleged conduct and has no ability to prepare an informed response.
• The complainant fails to particularise the identity of the second respondent, Frank, and Spotless has been unable to identify him. The description of him is imprecise and Spotless did not and was not required to keep records of an employee's cultural background, height, hair, marital status or whether or not they have children.

(h) Spotless had also advised the Commission, in response to a suggestion that it check its records for particular periods identified by reference to Ms Sultana's work timesheets, that it had been unable to identify "Frank".

1. Spotless filed an affidavit sworn on 12 February 2024 by Andrew Lynch, who was employed by its parent company, Downer EDI Limited (Downer), as a specialist employment lawyer with responsibility within Downer for managing compliance and claims in relation to industrial and employment law matters, including claims of unlawful discrimination. Mr Lynch deposed that Downer had searched its archival payroll records and found records for two former employees called "Frank" but had no record of anyone employed by Spotless at the times and workplaces relevant to Ms Sultana's own employment who bore the name "Frank", "Franklyn Lagudi", "Frank Lagudi", or "Frank" with a surname beginning with the letter "L".

1. Ms Sultana filed no evidence but filed written submissions dated 2 February 2024.
2. She submitted that she had not made her complaint to the Commission or to Spotless timeously because she had been too embarrassed to describe the incident(s), had feared she would be assaulted by the "rude and arrogant" staff at Spotless who "would not hesitate to attack [her] physically and verbally", had suffered adverse psychological consequences from her experience(s), lacked confidence following the harassment and her dismissal, suffered from post-traumatic stress disorder and had been afraid that dealing with Spotless's legal representatives would hurt her "emotionally and psychologically".
3. As to the merits of the claim of harassment and the prospects of success of her proposed application for final relief Ms Sultana referred to the contents of her complaint to the Commission.

1. Spotless Services filed written submissions dated 12 February 2024. It argued that leave to proceed should not be granted because of the lengthy delay in making the complaint to the Commission and the prejudice it said would suffer if it had to respond to allegations of misconduct that is said to have been engaged in some dozen years earlier by a person who cannot be identified.

1. Ms Sultana's allegations disclose a reasonable cause of action but that fact is of comparatively little significance when the consequences of the delay in bringing the proceeding are considered.
2. Although there is no time limit for a complaint to be made to the Commission, the Parliament's recognition that a late complaint may be a source of injustice is reflected in s.46PH(1)(b) of the AHRC Act, quoted earlier, and in the fact that complaints terminated under that provision cannot, unless the Court grants leave, be the subject of an application alleging unlawful discrimination: s.46PO(1) and (3A) of the AHRC Act. When deciding whether leave to commence such a proceeding should be granted, considerations relevant to the exercise of a discretion to extend time to bring a proceeding can be relevant: Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080 at [23]- [26]. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J said at 551-552:

For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

"The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible ... (references omitted)

1. Ms Sultana has submitted various matters to explain her failure to bring her complaint earlier but none of them provide a satisfactory explanation for her failure to take action timeously. For instance, the fear of being physically and verbally assaulted by Spotless staff had no basis after she ceased to be employed by Spotless in 2012 and her subsequent inaction has been attributed solely to the psychological consequences of the events she has described. However, although embarrassment, lack of confidence and considerations of modesty can be accepted as likely impediments, she has not adduced evidence of material psychological distress consequential upon the events she has described, let alone psychological distress of a severity that would explain her delay in acting. Although Ms Sultana has submitted that she suffered from post-traumatic stress disorder, this assertion is unsupported by evidence.
2. As to Spotless, I accept that it has sought with apparent diligence to identify any employee matching the few details Ms Sultana provided of her alleged assaulter and that it has been unable to do so. Its enquiries might have had a different outcome if the complaint had been made earlier, when records would have been more available and memories, including Ms Sultana's, fresher.
3. Although I am not unsympathetic to Ms Sultana's situation and to the distress she says she has suffered, she has left her compliant too late for it to be able to be determined with any degree of fairness to Spotless. In the circumstances, leave under s.46PH(1)(b) of the AHRC Act is refused.

1. As leave nunc pro tunc to make the application filed on 23 October 2023 is to be refused, the proceeding will be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.