Ground 2: Construction and application of s 28G(1) of the SDA
51 Ground 2 of the Notice of Appeal asserts that the primary judge erred in the construction and application of the expression "in the course of" in s 28G(1) of the SDA.
52 The application before the primary judge was for leave to commence a proceeding alleging that the second respondent contravened s 28G(1) and s 28L of the SDA and that Telstra is vicariously liable under s 106(1) for that conduct. The appellants did not allege that Telstra directly contravened s 28G(1) or s 28L.
53 Section 46PO of the AHRC Act provides, relevantly:
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;
an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
…
54 The expression "unlawful discrimination" is defined in s 3 of the AHRC Act to mean, relevantly, "any acts, omissions or practices that are unlawful under…Part II of the Sex Discrimination Act 1984". Sections 28G and 28L are within Part II of the SDA. Section 46PO of the AHRC Act treats sexual harassment as being encompassed within unlawful discrimination. Where a complaint has been terminated under s 46PH of the AHRC Act, a party seeking to commence a proceeding alleging sexual harassment in contravention of the SDA is required to obtain the leave of the relevant Court.
55 The appellants filed an originating application and statement of claim alleging they had been sexually harassed by the second respondent in contravention of s 28G(1) and s 28L of the SDA (and also raising other causes of action) prior to seeking leave under s 46PO(3A) of the AHRC Act. The respondents have not argued that leave may not be granted after proceedings have been commenced.
56 In James v WorkPower Inc [2018] FCA 2083, Mortimer J (as the Chief Justice was then) observed at [31] that in the exercise of the discretion under s 46PO(3A)(a) of the AHRC Act, the administration of justice will be a governing consideration. Her Honour held at [37], in a passage with which we respectfully agree:
I am satisfied that 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.
57 Her Honour also held at [39]:
…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. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court- directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.
58 Her Honour's opinion that the Court, "ought not embark on a detailed consideration and determination of the merits", must be qualified by the reasoning of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [18]-[19], [28] and [41] that there may be circumstances where a detailed evaluation of the merits is appropriate.
59 We agree that contested questions of fact should generally be left for determination at trial, subject to some qualifications including that the facts alleged may be so outlandish, far-fetched and fanciful that a judge might not be obliged to proceed upon an assumption that they are true. We also agree that arguable questions of law should ordinarily be determined at trial, but accept that in a particular case it may be appropriate to determine an arguable question of law if an answer against the applicant will be determinative. That is the approach the primary judge purported to take in the present case. His Honour stated at [11] that:
If the point of law were reasonably arguable it would be inappropriate to refuse leave. Conversely, if the point were clear and fatal to the complaint, it would be in keeping with the purpose of s 46PO of the AHRC Act to refuse leave.
60 It may be seen from the outcome of the application that the primary judge considered that the proper construction of the phrase "in the course of" in s 28G(1) and s 28L of the SDA was not reasonably arguable, but was clear and fatal.
61 In light of the parties' submissions, the issue for the primary judge was whether the appellants had demonstrated a reasonably arguable case of contravention of s 28G(1) or s 28L of the SDA against the second respondent. If no reasonable case could be demonstrated against the second respondent, it necessarily followed that vicarious liability could not be established against Telstra.
62 It may be observed that the SDA does not prohibit all sexual harassment, but only makes sexual harassment unlawful where it occurs in specified areas. That may be contrasted with the Anti-Discrimination Act 1991 (Qld) and the Anti-Discrimination Act 1992 (NT) which make all sexual harassment unlawful.
63 When enacted, the SDA only made sexual harassment in the areas of work and education unlawful. The SDA was amended by the Sex Discrimination and other Legislation Amendment Act 1992 (Cth) to extend the areas in which sexual harassment is unlawful to cover employment and partnerships (s 28B), members of bodies with power to grant occupational qualifications (s 28C), registered organisations (s 28D), employment agencies (s 28E), educational institutions (s 28F), goods, services and facilities (s 28G), provision of accommodation (s 28H), land (s 28J), clubs (s 29K) and Commonwealth laws and programs (s 28L). Despite the age of these provisions, an understanding of their scope remains an area for development, having received surprisingly little judicial attention so far. That suggests a need for caution in determining contested issues of interpretation at the stage of an application for leave to commence a proceeding. Such caution is of particular importance when considering a critical phrase, such as "in the course of...", which is used in a number of different provisions in Division 3 and requires consideration of the overall context.
64 Section 28G(1) of the SDA provides, relevantly, that "[i]t is unlawful for a person to sexually harass…another person in the course of providing…services…to that other person".
65 The appellants sought to demonstrate a reasonably arguable case that, first, they had been "sexually harassed" within the meaning of s 28A of the SDA; and, second, the sexual harassment had been conducted by the second respondent "in the course of providing…services" to them.
66 The primary judge considered the appellants' case primarily by reference to both versions of their statement of claim. The appellants pleaded, relevantly:
(a) The appellants contracted with Telstra for it to provide telecommunication and information services, including mobile telephone numbers, landline telephone numbers and internet services (their home telephone number and address was unlisted).
(b) The appellants were required to give Telstra private information including their names, address, telephone numbers and email address.
(c) Telstra's privacy policy guaranteed the privacy of the private information and provided that the private information would be used only for limited specified purposes to do with the Telstra business.
(d) Telstra and its employees were under an obligation of confidence not to disclose customers' private information to others.
(e) The second respondent was employed by Telstra as a Project Manager.
(f) Telstra provided the second respondent with a mobile telephone number and a laptop
(g) Telstra allowed the second respondent access to information held about its customers, including by arranging a Commonwealth security clearance for him.
(h) The second respondent used his Telstra laptop to post advertisements on internet websites purporting to be placed by the appellants and offering their sexual services, and sent emails to their email address containing pornographic images.
(i) The second respondent accessed Telstra's records and used the appellants' private information, including their names, address, telephone numbers and email address in the advertisements and to send the pornographic emails.
(j) The second respondent's sexual harassment was in connection with his employment for reasons including that his conduct took place at work, he used Telstra's equipment and he accessed the private information stored by Telstra.
(k) The second respondent sexually harassed the appellants in contravention of s 28G(1) and s 28L of the SDA.
(l) By the operation of s 106(1) of the SDA, Telstra is liable for the sexual harassment perpetrated by the second respondent.
67 The primary judge held that the second respondent's alleged conduct in placing the advertisements for sexual services and sending pornographic emails raised a reasonably arguable case that he had engaged in "sexual harassment" of the appellants within the meaning of s 28A of the SDA.
68 The critical question for the primary judge became whether the appellants had demonstrated a reasonably arguable case that the sexual harassment allegedly perpetrated by the second respondent was "in the course of providing…services" within s 28G(1) of the SDA.
69 The manner of drafting of the two statements of claim suggested that the appellants' case under s 28G(1) was that Telstra had provided services to the appellants, and that the second respondent had sexually harassed them in the course of Telstra's provision of those services. That would have involved an interpretation of s 28G(1) such that the person conducting the sexual harassment in not necessarily required to be the person providing the services.
70 However, the appellant does not seem to have argued the case in that way before the primary judge. His Honour proceeded on the basis that the appellants were required to demonstrate a reasonably arguable case that the second respondent's alleged harassment occurred in the course of the provision of services by the second respondent (not Telstra) to the appellants. The parties argued the appeal upon a tacit assumption that this aspect of his Honour's construction is correct. An argument might (we put it no higher) be available that the interaction of s 28G(1) and s 106(1) indicates that the former provision might catch sexual harassment engaged in by a person in the course of the provision of services by someone else, for example, their employer. In the absence of any argument on the point we will proceed on the basis of the parties' assumption that this aspect of the primary judge's construction is correct.
71 A related matter is that the primary judge held that an individual may provide a service for the purposes of s 28G(1) of the SDA even though the legal relationship for the provision of the service is between a body corporate employer or principal and the person sexually harassed. The parties argued the appeal upon an assumption that this construction is correct and that s 28G(1) may have been contravened if the sexual harassment occurred in the course of the second respondent providing services that Telstra had contracted with the appellants to provide. We will also proceed on the basis of that assumption.
72 Whether the appellants had demonstrated a reasonably arguable case that the second respondent had engaged in the alleged sexual harassment "in the course of providing…services" within s 28G(1) of the SDA required consideration of three questions:
(1) What were the services alleged by the appellants to have been provided to them by the second respondent?
(2) Was it reasonably arguable that the second respondent had provided those services to the appellants?
(3) Was it reasonably arguable that the second respondent's alleged sexual harassment occurred in the course of providing those services to the appellants?
73 The primary judge's approach to the first two questions is reflected in the following passages:
…[I]t may consequentially be accepted that an incident of a telecommunication services contract namely confidentiality of personal information such as home and email addresses and telephone numbers was a "service".
The question becomes whether any of the pleaded conduct was, even arguably, "in the course of" the provision of such a service by Mr Bose?
74 In these passages, his Honour seemed to accept that it was reasonably arguable that the second respondent provided services to the appellants; that the nature of the services was telecommunications services; and that maintaining confidentiality of personal information was an incident of the provision of such services.
75 The primary judge's answer to the third question was that it was not reasonably arguable that the second respondent's alleged sexual harassment was "in the course of" providing services to the appellants. As we will explain, that answer turned upon his Honour's interpretation of s 28G(1) as having a particular and confined meaning.
76 The primary judge set out a passage from Stock Health Service Pty Ltd v Brebner (1964) 112 CLR 113, where the High Court was concerned with the phrase "in the course of his profession" in legislation governing the prescription of drugs by veterinary surgeons. In that passage, Windeyer J (Kitto J agreeing) held at 122:
The words "in the course of his profession" mean in the performance of a distinct professional engagement. They point to acts done by a veterinary surgeon in his professional capacity - not to something done by him in some other capacity as for example when addressing a public meeting or in a letter to a newspaper on some subject of public controversy or as a director of a company.
(Emphasis added by the primary judge.)
77 The primary judge then concluded that the phrase, "in the course of providing…services", in s 28(1) of the SDA refers to, "something done by the individual in the provision of the services, not in some other capacity". His Honour's conclusion reflects the language of the emphasised parts of the passage from Brebner.
78 His Honour continued:
As pleaded, the "Advertisements", the Bose emails", "Other Emails", "Home Visits" and the "Phone Communications" were each facilitated by access which Mr Bose enjoyed by virtue of his then employment with Telstra to the personal information of Mr and Mrs Weir but none of the conduct constituted by these pleaded acts occurred "in the course of" his providing services to them. The inevitable conclusion is that the conduct concerned occurred in the course of a private dispute between neighbours, not in the course of the provision of services by Mr Bose to Mr and Mrs Weir.
79 The primary judge apparently interpreted the passage from Brebner as meaning that an act can be either in the course of the person's professional capacity or in some other capacity, but not both. His Honour then applied that passage to the present statutory context. The primary judge found that the sexual harassment allegedly engaged in by the second respondent occurred in the course of a private dispute between neighbours. His Honour seems to have used the word "private" to refer to a dispute unrelated to the provision of any service. His Honour reasoned that if the sexual harassment occurred in the course of a private dispute, it cannot have also occurred in the course of providing services. His Honour's reasoning involved a construction of s 28G(1) such that sexual harassment cannot occur both in the course of providing services and in the course of a dispute unrelated to the provision of services.
80 We are unable, with respect, to accept the primary judge's construction of s 28G(1) of the SDA. Nothing in the language of the provision suggests that sexual harassment cannot occur both in the course of providing services and in the course of a dispute unrelated to the provision of services. Neither does the context suggest such a dichotomy. It is evident that sexual harassment may occur both in the course of providing services and in the course of some dispute, or for some other motivation, unrelated to the services provided. Under s 3(c), an object of the SDA is to eliminate, so far as is possible, sexual harassment in specified areas of public activity. In this context, it is most unlikely that the legislative intention could be to remove sexual harassment from the reach of s 28G(1) merely because it also occurs in the course of a private dispute.
81 Further, the appellants' allegation was, in effect, that the second respondent engaged in the sexual harassment as an act of vengeance or spite stemming from their neighbourhood dispute. The primary judge's conclusion that s 28G(1) cannot apply in such circumstances suggests that his Honour considered that sexual harassment is excluded as occurring in the course of providing services if the perpetrator's subjective motivation or purpose in engaging in the sexual harassment is unrelated to the services. That cannot be accepted. If, for example, a doctor sexually harasses a patient during a consultation, the fact that the act was done for the doctor's private purpose of gratifying his sexual desires would not remove the harassment from the description of occurring in the course of providing services to the patient. There will inevitably be some underlying motivation or purpose in sexual harassment, often sexual or in order to exercise power, but sometimes also for reasons such as revenge or spite. The harasser's motivation or purpose cannot of itself remove the conduct from the scope of the provision.
82 We do not interpret the passage relied on by the primary judge from Brebner as indicating that an act can be either in the course of the person's profession or in some other capacity, but not both. In that passage, Windeyer J was simply contrasting an act done by a veterinary surgeon in their professional capacity with something done in some other capacity. The High Court was not called upon to consider whether an act could be done both in a professional capacity and some other capacity.
83 The primary judge's construction of s 28G(1) of the SDA such that if sexual harassment occurs in the course of a private dispute it cannot occur in the course of the provision of services was, with respect, erroneous. That erroneous construction led his Honour to conclude that, even though the second respondent may have provided telecommunication services to the appellants, the sexual harassment cannot have occurred in the course of the second respondent's provision of those services.
84 In the appeal, the respondents emphasised the absence of any identification by the appellants in their pleading of the nature of the services they alleged were provided. Since the appellants alleged that the second respondent had sexually harassed them in the course of the second respondent's provision of services to them, it was centrally relevant to identify those services. However, neither of the two versions of the statement of claim did so. To be fair to the primary judge, the way the appellants presented their case made it difficult to understand exactly what they were alleging. Nevertheless, his Honour discerned from the appellants' submissions that they were alleging that the second respondent had provided them with telecommunications services.
85 The respondents rely on Hanson v Burston [2022] FCA 1234 and Leach v Burston [2022] FCA 87. In each of those cases, an application was made for summary dismissal or striking out of a pleading, so that the terms of the pleading were considered critical. In contrast, the present case involved an application for leave to commence a proceeding. The application could have been made before commencing the proceeding, but, as it happened, the application was made after a statement of claim had been filed. In assessing whether the appellants had demonstrated that the case they proposed to bring was reasonably arguable, the primary judge was not confined to the pleadings, but was also able to take into account their submissions explaining the manner in which they proposed to make their case. That is exactly what his Honour did when identifying that the appellants' allegation was that the second respondent had provided them with telecommunications services and accepting that it was reasonably arguable that he had provided such services.
86 In the appeal, the appellants expressly articulated that the services alleged to have been provided by the second respondent were telecommunication services. This submission was said to be consistent with the opinion of the primary judge that an individual may provide a service even though the legal relationship may be between a body corporate employer or principal and the person allegedly harassed. The submission seems to be that when Telstra contracted with the appellants to provide them with telecommunication services, the work required to provide those services had to be done by its employees, and that the performance of that work by the employees can be described as providing telecommunication services.
87 There is very little evidence presently before the Court about what the second respondent's duties at Telstra involved. There was before the primary judge an affidavit annexing a document describing the second respondent's duties, but that document was not before the Court in the appeal. The two statements of claim alleged that the second respondent was a Project Manager, that he had been issued by Telstra with a laptop computer and had a security clearance that allowed him access to customers' information stored by Telstra, including the appellants' personal information.
88 It may be inferred that Telstra stored information about its customers, including the appellants, for the purpose of providing them with telecommunication services, including matters incidental to such services such as billing, marketing, making improvements and changes to services, preventing faults, addressing faults and dealing with inquiries and complaints. In the absence of any further evidence about the second respondent's duties, it may be inferred that he was allowed to access and make use of customers' information to enable him to assist customers, whether directly or indirectly. It is reasonably arguable that even employees who have no direct contact with customers, but assist in back-office functions that allow Telstra's systems to function or function better, may be providing services to customers.
89 In these circumstances, it is reasonably arguable that the second respondent was engaged in the provision of telecommunications services, or at least matters incidental to the provision of telecommunication services, to the appellants when he accessed and extracted their personal information. That the second respondent then misused the information by disclosing it to others and sending the appellants sexually explicit emails would not necessarily remove his actions from the description of occurring in the course of providing services. He was apparently authorised to make use of the information, and did make use of it, but in an unauthorised way. In this respect, the primary judge considered that the keeping of private information confidential could be regarded as an incident of providing telecommunications services. It may also be argued that, even of itself, the second respondent's failure to keep the information accessed confidential can be described as being in the course of providing services. Added to these matters is the second respondent's alleged use of the work laptop to carry out the sexual harassment. In circumstances where it is alleged that the telecommunications services provided by the second respondent gave him the opportunity and means of accessing information necessary to carry out his sexual harassment of the appellants and that he made use of equipment used for the provision of services to do so, it is reasonably arguable that the harassment occurred in the course of providing services.
90 The respondents argue that the only connection alleged by the appellants between the second respondent's sexual harassment and his provision of service was that the services gave him the opportunity to engage in the sexual harassment. They submit that mere opportunity cannot be enough to establish that the sexual harassment occurred "in the course of providing…services". Certainly, in Prince Alfred College Inc v ADC (2016) 258 CLR 134, when considering in what circumstances an employer can be vicariously liable for an intentional tort committed by an employee, the High Court held at [81] that the fact that employment affords an opportunity for the commission of the wrongful act does not of itself mean it was committed in the course or scope of employment.
91 However, s 28G(1) of the SDA provides a quite different context. Even assuming the only connection between the sexual harassment and the provision of service is the opportunity it provided to engage in the harassment, it seems at least arguable that the creation of such an opportunity provides sufficient connection to allow it to be determined that the sexual harassment occurred "in the course of providing…services". In addition, in Prince Alfred College, it was held that other relevant factors include the authority, power, trust and control that the harasser has in relation to the victim, and whether the harasser takes advantage of their position. In this case, the appellants allege that it was the second respondent's provision of services which allowed him access, power and control over their personal information and that he took advantage of his position. These matters also suggest it is reasonably arguable that the sexual harassment occurred in the second respondent's provision of services.
92 The first meaning of "services" in the Macquarie Dictionary is "an act of helpful activity". It may be that the expression extends beyond the helpful to activities that are or become detrimental. That is particularly so in the context that sexual harassment itself is necessarily detrimental.
93 It is not difficult to think of examples of other cases which might test the width of the expression "in the course of providing…services", and which might bear some comparison. One example is where a person has provided services to a customer in the past and months later accesses her phone number from his records and proceeds to sexually harass her. Another is where a person is engaged to provide a service to a customer but does not actually embark on any work at all and instead sexually harasses the customer. In each case it seems arguable that in its context, the phrase "in the course of providing…services", is sufficiently wide to cover the conduct. The point to be made is that it is no easy task to define the limits of "in the course of providing...services" under s 28G(1) of the SDA and, even if that can be done, application of the limits may prove difficult.
94 In our opinion, it is reasonably arguable that the second respondent's alleged sexual harassment of the appellants was "in the course of providing…services" within s 28G(1) of the SDA.
95 Accordingly, the primary judge erred in holding that the appellants should not be granted leave to commence a proceeding alleging contravention of s 28G(1) of the SDA.