Wilson v Britten-Jones

ABRAHAM J: 1 This is an application for leave pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to commence proceedings in this Court in which the applicant alleges, inter alia, that the respondents contravened ss 5, 17, and 94 (including by virtue of s 105) of the Sex Discrimination Act 1984 (Cth) (SD Act), by discriminating against her on the basis of her sex and by committing acts of victimisation. Leave is required to commence these proceedings as the applicant's complaint lodged in the Australian Human Rights Commission (AHRC) pursuant to s 46P of the AHRC Act (Complaint), in which she alleged the respondents discriminated against her because of her sex and that she was the subject of victimisation, was terminated. 2 At the time of the events the subject of the allegations the applicant was, and had been since March 2012, an equity partner of the law firm Piper Alderman. The respondents to the proceedings are the partners in the firm. 3 The following evidence was relied upon by the applicant in support of the application for leave: (1) affidavit of Lexia Wilson sworn on 5 February 2019, paragraphs [9], [16], [17], [18], [27]-[31], [33], [35], [36]; (2) affidavit of Lexia Wilson sworn 22 February 2019, paragraphs [6(l)], [6(m)], [6(n)], [13]-[33], [34]-[39], [45]; (3) affidavit of Lexia Wilson sworn 20 January 2020; (4) the Thew report; (5) the tender bundle attached to the supplementary submissions dated 18 June 2018. The respondents submitted, and the applicant accepted, that the affidavits relied on by the applicant were not for the purpose of fact finding, but rather to be used in the course of her submission. 4 The following evidence was relied upon by the respondents in relation to the application for leave and their interlocutory application to set aside a notice to produce: (1) affidavit of Christopher Gordon Smith affirmed 17 February 2020; (2) affidavit of Christopher Gordon Smith affirmed 11 March 2020; (3) affidavit of Tim Capelin affirmed 2 July 2020; (4) the tender bundle attached to the respondents' supplementary submission dated 3 July 2020. 5 For the reasons below, the application for leave pursuant to s 46PO(3A)(a) is refused. 6 On 23 April 2020 I made orders in relation to an amended notice to produce (amended notice) served by the applicant to which the respondents had taken objection, setting aside aspects of the amended notice but otherwise dismissing the objection. This judgment, in addition to addressing the application for leave, provides the reasons for those orders made. 7 In that context it is first appropriate to outline the factual background to this matter and the statutory framework and principles relevant to the grant of leave. Factual background 8 The following factual background is only a brief overview, and contains allegations that the applicant seeks to establish if leave is granted. 9 As noted above, these events occurred in the context of the applicant being an equity partner of the law firm, Piper Alderman, which she had been since March 2012. The applicant was the leader of the property practice group and deputy managing partner. 10 In late October 2018 complaints were made against the applicant by two junior female lawyers of the firm, who were members of her practice group. The complaints concerned allegations of workplace bullying by the applicant of those lawyers, who were working under her supervision. In early November 2018 the applicant was advised by the managing partner of the firm, Mr Tony Britten-Jones, of those complaints. 11 The complaints were referred by Mr Britten-Jones to Mr Tim Capelin, a partner of the firm whose area of expertise is in employment law. On or about 23 November 2018 Mr Capelin engaged an external barrister, Ms Penny Thew, on behalf of the firm to conduct an independent investigation into the allegations of bullying made against the applicant. Ms Thew conducted her investigation throughout late November and early December 2019, which involved interviewing the complainants, the applicant and other staff members who were witnesses. Ms Thew appears to have provided to management on about 14 December 2018 a completed report, however which at that time remained in "draft". The report in what appears to be final form is dated 21 December 2018 (the Thew report). The report produced by Ms Thew as a result of the investigation, inter alia, reached the conclusion that some of the allegations were sustained. 12 In evidence, principally filed by each party in relation to the supplementary submissions, were a number of email communications between relevant persons leading up to and after the provision of the report. These included references to the conduct of the applicant both as to the foundation of the complaints, and after being notified of the complaints. 13 On 6 January 2019, the applicant was advised by Mr Britten-Jones that she was to be provided with the report the next day, and that her response would be required within 7 days. On 6 January 2019 Mr Britten-Jones also notified the applicant that he had purported to remove the applicant from her positions of property practice team leader and deputy managing partner. 14 On 14 January 2019 the applicant's solicitors wrote to Mr Britten-Jones and made a number of allegations and threats. These included: that during a meeting held with the applicant on 22 November 2018 Mr Britten-Jones engaged in "inappropriate bullying conduct"; that the applicant had been advised that she has "separate rights in defamation" against three-named individuals, including the two complainants and that it was anticipated that in the near future they would be issuing each of those individuals with a "Concerns Notice" (see s 14 of the Defamation Act 2005 (NSW)); complaints as to the procedures adopted by Ms Thew, and that they were flawed, and also the fact that there had been no mediation as an alternative; that Ms Thew was not sufficiently experienced to undertake the investigation entrusted to her and that the matter should have been instead referred to a more senior practitioner; that the applicant had concerns regarding the integrity of a number of witnesses and suggested that one of them (not the complainants) gave evidence that was "completely fictitious"; and that it was suggested by the applicant that falsified documents were provided to the investigator. 15 On 15 January 2019, Mr Capelin informed the applicant that Mr Britten-Jones was considering Ms Thew's report and the applicant's response and that he would shortly decide how to proceed and that there was a "real possibility that a resolution would be put to a special meeting of the equity partners [of the firm] to expel [her] from the partnership". In that correspondence the allegations of bullying made against Mr Britten-Jones were denied. As to the threat to send Concern Notices to the two complainants and a witness, Mr Capelin said that the firm considered that this amounted to further bullying behaviour by the applicant and an attempt by her to victimise witnesses in the investigation. 16 On 18 January 2019 the applicant issued to the respondents a notice pursuant to s 28 of the Partnership Act 1891 (SA) (Partnership Act), in which 11 categories of documents were requested (initial Partnership Act notice). After correspondence by the respondents, on 12 February 2019 the applicant amended the initial Partnership Act notice (Partnership Act notice). On 13 February 2019 the respondents, while not accepting the applicant had any entitlement to the material sought, advised the applicant that the documents responding to the Partnership Act notice would be made available, subject to confidentiality protocols, for inspection at the respondents' office at a specified time. In doing so the respondents raised with the applicant the breadth of the categories of documents sought, and that they had made all reasonable efforts to produce the documents. Three lever arch folders of documents were provided for inspection on a number of occasions. The applicant sought copies of the documents but the request was denied on the basis that the documents are highly confidential. I note that in correspondence between the parties the applicant alleged there were omissions in the documents provided, and the respondents denied that was so. 17 On 30 January 2019, the applicant lodged a Complaint in the AHRC alleging the respondents contravened ss 5 and 17(3) of the SD Act by discriminating against her on the grounds of her sex, and victimised her in contravention of s 94(2)(a) and/or 94(2)(f) and 94(2)(g) of the SD Act. The temporal period for the Complaint is 9 November 2018 to 30 January 2019: s 46P and s 46PO(3) of the AHRC Act. 18 On 4 February 2019, a private mediation of the Complaint was conducted but was unsuccessful. 19 On 18 February 2019, the applicant filed in this Court an urgent application for an injunction to restrain the respondents from proceeding to hold any meeting to consider any resolution the effect of which was to expel the applicant from the partnership. That interlocutory injunction was granted pending the final hearing and determination of the application. On 24 May 2019, after a hearing before Nicholas J in relation to the application for an injunction, the interlocutory injunction was discharged: Wilson v Britten-Jones [2019] FCA 747 (Wilson v Britten-Jones). Relevantly, as explained in more detail below, the Court addressed, inter alia the merits of the underlying claim. Suffice to say at this stage, the Court did not accept the submission that the material established that the applicant's treatment by the firm had anything to do with the fact she was a female partner of the firm: Wilson v Britten-Jones at [58]-[74], or that the applicant had been victimised within the meaning of the SD Act: Wilson v Britten-Jones at [78]-[79]. 20 On about 30 June 2019, the applicant retired from the Piper Alderman partnership. 21 On 24 September 2019, the Delegate of the President of the AHRC (the Delegate) terminated the Complaint pursuant to s 46PH(1B)(a) of the AHRC Act, on the ground that it was lacking in substance and a Notice of Termination was issued. The reasons included the following: I consider that there is insufficient information before me to support that Ms Wilson was treated less favourably than someone of a different sex to her in the context of Piper Alderman's handling of bullying claims made against her, including by convening a meeting which sought to expel Ms Wilson as a partner. With regards to the latter, I note that Piper Alderman states that it proposed a meeting to consider expelling Ms Wilson from the partnership due to the findings of an independent investigator that 34 of the 39 bullying allegations made against Ms Wilson were substantiated. I note that in her complaint form Ms Wilson points to male colleagues within Piper Alderman who were the subject of complaints and whom she claims were not subject to comparable scrutiny as her by the partnership . However, it is unclear that this in and of itself would support Ms Wilson's claim of sex discrimination in relation to the manner in which Piper Alderman dealt with the bullying allegations made against her. It is also noted that Piper Alderman claims that none of the allegations against other staff involved allegations of bullying by two junior staff members that were substantiated by an independent investigator and therefore the examples are not relevant comparators because they give rise to materially different circumstances. … Regarding the exclusion, Piper Alderman states that while it did seek to exclude Ms Wilson from attending the office on 16 January 2019, this was due to her 'threat' to send Concern Notices to three individuals under the Defamation Act 2005 (NSW). Piper Alderman says after Ms Wilson provided undertakings she was able to enter the premises on 17 January 2019. Piper Alderman claims that there is no evidence that a male partner who refused to withdraw threats to commence defamation proceedings would have been treated more favourably than Ms Wilson. I note that other than Ms Wilson's assertion and belief, there is no information currently before the Commission, to support that Piper Alderman 's act in seeking to exclude Ms Wilson on 16 January 2019 was because of her sex or that a person of a different sex would have been treated differently in the same or not materially different circumstances. Regarding Piper Alderman's alleged failure to provide documents requested by Ms Wilson, the connection between this alleged failure and Ms Wilson's sex is very unclear. In addition, I note the information before me includes a letter from the respondents' solicitor to you dated 18 February 2019, which asserts that some of the documents sought are highly confidential and subject to duties and obligation to third parties. The correspondence also asserts that other documents requested by Ms Wilson were either already provided or did not exist. In any event, accepting that this is an issue that appears to be in dispute between the parties, there is no information before the Commission to support that Piper Alderman would have treated a request for documents made by a person of a different sex any differently in the same or not materially different circumstances. For the above reasons, I consider that the information currently before the Commission does not support Ms Wilson's claim that she has been discriminated against on the basis of her sex. Victimisation In considering Ms Wilson's claims of victimisation, I consider there is insufficient information before me to support that Piper Alderman's actions in seeking to convene a meeting on 5 February 2019 to expel Ms Wilson from the partnership or failing to provide information to her lawyers were acts which were done because she has asserted her rights under the SDA, made a complaint to this Commission or for any other reasons listed in sections 94(2) of the SDA. It is unclear how and when Ms Wilson says she asserted her rights under the SDA or did any other actions under section 94(2) of the SDA. It is also unclear that there is any causal link between her engaging in such activity under section 94(2) of the SDA and in Piper Alderman's actions in not providing her with information requested or in convening a meeting to consider her expulsion from the partnership. With respect to the claim that the respondents failed to provide Ms Wilson with requested documents, I refer to the information above and while again noting that this is an issue that appears to be in dispute between the parties, I consider that there is no or no sufficient information before the Commission to support that any action referred to under section 94(2) was a 'substantial or operative factor' for any alleged failure to produce requested documents. In relation to convening a meeting on 5 February 2019, as advised above, it appears that the reason Piper Alderman sought to convene this meeting was the outcome of the investigation into bullying allegations made against Ms Wilson which substantiated 34 out of the 39 allegations against her. I consider that there is no or no sufficient information before the Commission to support that any action referred to under section 94(2) was a 'substantial or operative factor' why Piper Alderman sought to convene this meeting. Procedural history 22 As noted above, on 24 May 2019 an interim injunction imposed by this Court was discharged. Relevantly, as explained in more detail below, inter alia, the merits of the underlying claim were addressed in that decision. 23 Further, as noted above, on 24 September 2019 the Delegate terminated the Complaint to the AHRC pursuant to s 46PH(1B)(a) of the AHRC Act, on the grounds that it was lacking in substance and a Notice of Termination was issued. 24 On 9 December 2019, at a case management hearing in this Court, the application for leave to commence proceedings under s 46PO was listed for hearing on 16 March 2020, with orders made as to the filing of evidence and written submissions in advance of that hearing. Those orders were complied with. Thereafter, a notice to produce dated 2 March 2020 (notice to produce) was issued by the applicant to the respondents, presumably served on or about that date. The respondents sought an order setting aside that notice to produce by interlocutory application dated 11 March 2020 (two business days before the hearing). 25 On the day of the hearing, 16 March 2020, the applicant sought an adjournment to enable the documents to be produced. The documents sought were said by the applicant to be directed to evidence in relation to potential comparators. It was submitted that the Court would be "substantially assisted …by having reference to the documents" which she would put before the Court as a result of the notice to produce. The argument as to the objection to the notice to produce proceeded that day, during which, as a result of concerns I raised as to the breadth of some aspects of the notice to produce, during the hearing the applicant served the amended notice to produce. The argument for leave also proceeded that day on the basis that the applicant had filed submissions in support of the application it not then being suggested the material sought under the amended notice was required to argue the application. Nonetheless, the hearing proceeded on the basis that any argument about the amended notice could proceed after the respondents had an opportunity to consider their position and that an opportunity would be provided to the parties to provide further evidence and written submissions on the question of leave if the amended notice was not set aside. The parties agreed with that course. 26 On 23 April 2020, I made orders in relation to the respondents' application to set aside the amended notice, setting aside aspects of the amended notice but otherwise dismissing the objection. This judgment includes the reasons for those orders made. A timetable was set for the production of the documents and the filing of any further evidence and supplementary written submissions by the parties arising from those documents, addressing the issue of leave pursuant to s 46PO. Principles in relation to the grant of leave 27 Section 46PO(3A) was introduced into the AHRC Act, effective from 13 April 2017. Section 46PO is relevantly in the following terms (with notes omitted): 46PO Application to court if complaint is terminated (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. …. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (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). (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re‑employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. … (5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976). (6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)). (8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages. 28 It is accepted by the parties that the relevant principles are outlined in James v WorkPower Inc [2018] FCA 2083 (James v WorkPower) where Mortimer J considered the history of the provision and the context in which it now appears, concluding at [37]-[38]: 37. 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. 38. 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. 29 Mortimer J observed 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. 30 Finally, her Honour further identified the purpose of s 46PO(3A) at [43] as being to: ... filter out plainly unmeritorious complaints where the arguments are fanciful, or so obviously misconceived that what is being suggested by the applicant should not be entertained by the Court - whether because they are not arguable as a matter of law, or because there is no rational factual sub-stratum for the allegations, or because there is no utility in the proceeding. 31 Those principles from James v WorkPower have been repeatedly applied: for example: Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080; Jones v Westpac Banking Corporation [2020] FCA 238 (Jones v Westpac); Budino v Sunnyfield [2019] FCA 2164; Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607. 32 In Matthews v Markos [2019] FCA 1827 I observed at [37]: Whether 'overarching' is the correct description [of the consideration that there be an arguable case] may be debateable. Nonetheless, certain matters are clear. 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 (e.g. 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). 33 There are two bases to the applicant's claim made to the AHRC: sex discrimination contrary to ss 5 and 17(3) of the SD Act, and victimisation contrary to s 94 of the SD Act. 34 Section 17(3) of the SD Act provides: (3) It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a partner in the partnership on the ground of the partner's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by denying the partner access, or limiting the partner's access, to any benefit arising from being a partner in the partnership; (b) by expelling the partner from the partnership; or (c) by subjecting the partner to any other detriment. 35 Section 5(1) of the SD Act provides: (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex. 36 The doing of an act by reason of a particular matter referred to in s 5(1) includes doing an act by reason of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act: s 8. 37 In respect to the claim of sex discrimination, the allegation is direct discrimination. Direct discrimination, as defined by s 5(1) of the SD Act, occurs if the following two limbs are satisfied: the applicant treated less favourably than a man, in circumstances that are the same or not materially different (the comparator); and if so; a reason for the less favourable treatment was the applicant being a woman (causation). 38 In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [224] Gummow, Hayne and Heydon JJ explained how the "circumstances" should be identified: The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. 39 As to the allegation of victimisation, s 94 of the SD Act relevantly provides: (1) A person shall not commit an act of victimization against another person. Penalty: (a) in the case of a natural person - 25 penalty units or imprisonment for 3 months, or both; or (b) in the case of a body corporate - 100 penalty units. (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or (c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II; or on the ground that the first mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive. (3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith. 40 The phrase "on the ground" in respect to the victimisation claim, has been held to mean that the ground relied upon must be "the substantial and operative factor': Penhall-Jones v New South Wales [2007] FCA 925 (Penhall-Jones v New South Wales) at [85]; recently applied in Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436 (Tropoulos v Journey Lawyers) at [323]-[324]. Notice to produce 41 As noted above, on 23 April 2020 I made orders in respect to an amended notice to produce. The following are the reasons for those orders. At the outset I observe that the timing of the first notice to produce served by the applicant and the breadth of its terms, has resulted in a delay in the resolution of the application for leave. Procedural history 42 As will have been apparent from the recitation of the background to this application, this matter has some history. 43 In respect to the notice to produce, I add to the recitation above the following matters. 44 As noted above at [16], on 18 January 2019 the applicant issued to the respondents the initial Partnership Act notice, in which 11 categories of documents were requested. This was then amended on 12 February 2019. The respondents provided the documents to be inspected by the applicant, but the applicant's request for copies of the documents was refused on the basis the documents are highly confidential. 45 Further, the hearing of the application for an injunction referred to at [19] above was conducted on 26 February 2019. During that hearing, Nicholas J raised with the applicant the issuing of a notice to produce, but that course was not pursued by the applicant. So much is apparent from the judgment, where Nicholas J observed at [81]-[82]: There is some evidence to suggest that Mr Britten-Jones, Mr Grieve and perhaps other partners of the firm may wish to see the applicant leave the firm for reasons that are unrelated to any of the allegations of bullying that were made against her. The suggestion was said by the applicant's counsel to find support in some documents that are referred to in the affidavit by Mr Davis that he made following an inspection of documents produced to him by the respondents. I do not regard the evidence on this issue as persuasive. It is essentially secondary evidence of the contents of fragments of documents that could easily have been put into evidence by the applicant following the issue of a notice to produce. I raised this with counsel for the applicant during the hearing, even suggesting that he make a call for the documents that Mr Davis referred to in his affidavit. That suggestion was not taken up. 46 In that context, and as described above at [24], a notice to produce dated 2 March 2020 was issued by the applicant to the respondents, presumably served on or about that date. The procedure followed thereafter is recited at [24]-[26] above. An amended notice to produce was provided to the Court during the hearing, as explained above and below. 47 As described at [26] above, on 23 April 2020 at a case management hearing I made orders in relation to the respondents' objection to the amended notice, setting aside aspects of the amended notice but otherwise dismissing the objection. A time table was set for the production of the documents and the filing of any further evidence and supplementary written submissions by the parties arising from those documents, addressing the issue of leave pursuant to s 46PO. The applicant was granted leave to further amend the amended notice in respect to paragraph [24] within 24 hours (as requested by the applicant), given the orders setting aside aspects of the amended notice. When no amendment had been filed by 30 April 2020, well over the 24 hours requested, the respondents sought that [24] be set aside. In response, the applicant opposed that course and provided an amended paragraph [24], although that amendment did not accord with what was discussed during the case management hearing on 23 April 2020, and did not address the relevant issue. A further request was made by the respondents to strike out the paragraph. In response, a further amended notice to produce was provided by the applicant which on that occasion addressed the flaw that required remedy (second amended notice to produce). 48 As will have been observed, the prospect of issuing a notice to produce was raised with the applicant in February 2019. Although the timing of the notice to produce dated 2 March 2020 complied with the Federal Court Rules 2011 (Cth): r 30.28(3), it was provided shortly before the hearing. The timing of the notice to produce is in the context where the applicant was required by the orders made on 9 December 2019, to file and serve any evidence on which she intended to rely by 20 January 2020. The purpose of issuing the notice was to obtain material to rely on in support of the application. Given the history of the proceedings and the obvious breadth of the notice to produce, the applicant did not provide any real explanation for why it was served so close to the hearing of the application which, in the circumstances, was always likely to have delayed the resolution of the application. As is also apparent the applicant amended the notice to produce during the hearing after objection was taken to the breadth of its terms, and despite those amendments, for the reasons below, the amended notice in some respects was still flawed. Submissions 49 The crux of the applicant's submission was that the documents sought by the notice to produce were said to support her claim of discrimination on the basis of sex, with many of the paragraphs in the notice said to relate to persons who may be potential comparators for the purpose of the claim. 50 The respondents submitted that the notice to produce was a fishing expedition; that the documents sought are not described with sufficient precision; the documents sought had no apparent relevance to the issues in the case; and that the request is unduly burdensome and oppressive and should not be used as a substitute for discovery. In respect to the burdensome nature of the notice the respondents relied on evidence as to the difficulties in accessing the relevant documents, which included, given the confidential nature of the documents, only very limited persons have access to them, and the consequent time that it would take to comply. The respondents illustrated those points by reference to the terms of the notice to produce, which contained 24 paragraphs, most of which contained multiple subparagraphs. 51 Having heard argument, during the applicant's reply I expressed concerns about the breadth of the notice, which included, inter alia, the lack of any time frame in relation to the documents sought in some paragraphs and the very broad time frame in others, both of which would encompass material which could not be relevant to any issues in these proceedings; and the breadth of some of the defined terms in the notice to produce such that it would cover all the conduct of persons in the firm, which again could not be relevant to any issues in these proceedings. As a result, the applicant sought time to consider limiting what was sought by the notice. The amended notice to produce was provided by the applicant to the respondents later that day, during the course of argument. This amended notice did not press some of the paragraphs, and deleted words and phrases from others purportedly confining the scope of the documents sought. The amended notice contained 20 paragraphs. As the respondents had no notice of this document, submissions in relation to it were undertaken in writing. 52 The respondents submitted that the amended notice ought to be set aside. It submitted, in essence, that while the amended notice was served in an attempt by the applicant to ameliorate the defects underpinning the original notice, many of the issues have not been sufficiently addressed or cured. 53 A notice to produce has the same coercive power as a subpoena duces tecum, and the principles governing the exercise of the Court's power to set aside a notice to produce are the same as those which govern setting aside a subpoena for production issued to a party: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 (CFMEU) at [5] per Collier J. The party who issued the notice to produce carries the onus of establishing that they are entitled to the documents sought: CFMEU at [6] per Collier J. 54 Those principles are well established, and were summarised in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 at [12] as follows: The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38]. 55 Therefore, there must be a legitimate forensic purpose in seeking the documents for them to be the subject of a subpoena. They must have an apparent relevance in relation to the issues in the proceedings. The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38], citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6]. That said, a notice to produce cannot be used for the purposes of "fishing" or for the purpose of determining a preliminary question as to whether a party has a supportable case: CFMEU at [6] per Collier J. 56 The documents sought were submitted to be relevant to the question of leave to commence this application, as compared to the remainder of the applicant's claims. It was on that basis that the objection to the notice to produce was addressed and resolved prior to the determination of the application for leave to commence the proceedings. 57 As with the original notice to produce, the respondents pointed to the obligation on a party issuing a notice to produce as being to ensure: that the request for documents is not a mere fishing expedition issued in the hope of making a case; the documents sought are described with sufficient particularity; that the documents sought have an apparent relevance to the issues in the case; and that the request is not unduly burdensome or oppressive, or used as a substitute for discovery. The respondents relied on the oft cited passage of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575 in support of those propositions. 58 The respondents identified their objections by reference to each of the paragraphs of the amended notice, with the applicant being given the opportunity to respond. Suffice to say that the respondents submitted that the entire notice should be set aside, with the applicant contending that none of the respondents' complaints have any merit. I note that the respondents' objection on the basis of apparent relevance is only raised in relation to six of the twenty paragraphs in the amended notice (although others are alleged to be fishing). Two of those apparent relevance objections relate to the submission that sexual harassment is not a relevant comparator to bullying, which was the complaint against the applicant in this case. Given the nature of the application, it being an application for leave to commence proceedings as opposed to a hearing of the proceedings, it is inappropriate to resolve that issue at this stage. I have proceeded, without deciding on this application, and the leave application, that sexual conduct may be capable of being a comparator to that of bullying, depending on the circumstances of the case. 59 The test as to apparent relevance is a low threshold, and as both sexual harassment and bullying relate to workplace conduct, at this early stage, the apparent relevance of those paragraphs (save for those identified below) is established. Consideration 60 As a preliminary observation, there is some inconsistency in the terms of the amended notice, where some, but not all like paragraphs contain impugned phrases. There is also overlap between some paragraphs in relation to the documents sought. Having received the respondents' objections, I note the applicant did not further seek to amend the amended notice to address any of the matters raised. 61 There was merit in some of the respondents' objections. 62 As the respondents identified, many of the paragraphs relate to matters covered in the Partnership Act notice. However, as the applicant submitted, that without more is not a basis to challenge the amended notice as an abuse of process. Nor is the fact that in answer to the Partnership Act notice, the respondents produced those documents for inspection. 63 That said, the claims in respect to those matters which were in the Partnership Act notice appear generally now to be in broader terms than in that notice. For example, "any employee of the partnership" in the amended notice (and the reference to "member of the partnership" in the original notice to produce) are concepts, with perhaps two limited exceptions (see paragraph [4] and [8] of the Partnership Act notice), which have been added to the relevantly similar requests made in the Partnership Act notice, broadening that which was originally requested as relevant. Also introduced in the amended notice was the phrase "expressions of concern" which was added to "complaints and allegations" (which had been referred to in the relevantly similar request in the Partnership Act notice). There is no explanation for the inclusion of the broader terms. For example, there is no evidence, or suggestion that viewing a particular document has led to a basis to seek production of further documents. That tends to support the submission that the broader terms are fishing. 64 Against that background I turn to the objections. While I am not satisfied that the amended notice should be set aside in its entirety, some aspects should be struck out. 65 There are two common features of many of the paragraphs of the amended notice which are problematic. None of the features should be considered in isolation, as many of the paragraphs have more than one of the features below, which necessarily exacerbates the issues that arise from that feature, with respect to each. In addition, separate issues arise in relation to particular paragraphs. 66 First, paragraphs [1], [3], [7], [8], [12], [15], [17], [19], [24], each refer to documents evidencing and/or recording communications between six categories: five identified persons and then a catch all "any employee of the Partnership". That latter phrase replaced "any other Member of the Partnership" to address concerns raised during the hearing about the breadth of that concept as defined in the notice to produce. Member of the Partnership was defined as "includes all or any party, associated staff, principal, employee, contractor, solicitor, partner, consultant or any related entity of the Partnership". 67 As noted above, the breadth of this phrase in the context in which it was used was one of the matters of concern I raised with the applicant. The substituted phrase is not defined, but appears to be no less broad. The respondents contend that it is too broad, imprecise and oppressive. The applicant submitted that the phrase is limited by the documents in the category. However, that does not address the issue. Given the breadth of the phrase in the context in which it appears, it is difficult to see how communications with some persons encompassed by that phrase could be relevant to the proceedings. The paragraphs, as drafted, encompass any communications by any employee of the partnership about the topic, with no submission as to how such communications could be relevant to the claims made. This reaches far beyond the respondents in the matter. Even leaving aside the onerous consequences of the use of the phrase, it plainly encompasses communications which could have no possible relevance to these proceedings. The breadth of the phrase in the context in which it appears, and that the applicant submits it is impossible to narrow, reflects that its use in these paragraphs involves an element of fishing. As noted above, it was not a phrase used, and therefore not considered necessary, in the Partnership Act notice. 68 I note that in paragraph [10] the phrase "any other Member of the Partnership" was replaced with "an equity partner, general counsel, employed partner, or salaried partner". Such a phrase is more focussed on potentially relevant parties and meets the apparent relevance test. 69 Second, in paragraphs [10], [14], [16], [18], there is a reference to documents relating to "any expressions of concern, complaints or allegations". The respondents contend that the phrase "expressions of concern" in the contexts in which it appears is vague and not sufficiently precise as to be meaningless. It also contends that it is oppressive to require it to interpret such a vague phrase. The applicant submitted that the respondents "would be well aware of any expressed concerns made by their employees regarding bullying, victimisation and sexual harassment". That does not address the inherent vagueness of the meaning of that phrase, and why it would be relevant to the issues in this case (including how it could be a relevant comparator, in the sense described below). Moreover whether a statement is an "expression of concern" may well involve a subjective assessment. Importantly, this application for leave is not dealing with a circumstance involving merely an "expression of concern" against the applicant. In that context, the applicant has not addressed how such expressions could be relevant to any issue in the proceedings. As noted above, generally the amended notice was said to be relevant to the issue of a relevant comparator in s 5(1) of the SD Act. However, given the factual basis of the claims in this case, an "expression of concern" can have no apparent relevance to the question of leave. 70 Moreover, the use of the impugned phrases are linked in the amended notice. These phrases broaden various paragraphs to cover persons and documents which could not properly have any apparent relevance to any issue in this application for leave, or if leave is granted, the hearing of the claims of unlawful discrimination. 71 There are four paragraphs to be addressed separately. 72 Paragraph [5] relates to the exit interview of a former employee. While it is unclear from the drafting of the paragraph it appears from the applicant's submission that she seeks all documents touching on that exit interview. It was also submitted that it is "ludicrous" to assume that all the documents annexed to the Thew report are all the documents purporting to touch on the exit interview and asserted, without more, that the interview was a fabrication. No proper basis has been identified for this assertion. In those circumstances, the paragraph is fishing and is set aside. 73 Paragraph [20] is a broad category seeking documents as to the movements of unidentified persons during an unspecified period. The respondents submitted that the category is wide and undefined so as to amount to fishing. The applicant submitted that it is relevant to the applicant's victimisation claim. However, the applicant did not explain the basis of the submission, particularly given the meaning of victimisation in the SD Act (as explained above). The lack of specificity and breadth of the category reflects that it is fishing. This paragraph is set aside. 74 Paragraph [23] refers to "raised or discussed by any or all Members of the Partnership". Given the breadth of the definition of that phrase in the original notice it was one of the matters raised with the applicant during the hearing as being a concept that was too broad. While all the other references to "Members of the Partnership", including the definition, have been deleted in the amended notice, this paragraph remains. The applicant did not address this aspect of the respondents' objection in her supplementary submissions. There was no attempt to defend the use of the phrase. The phrase is too general, and is now undefined. It is vague and oppressive and is set aside. 75 Paragraph [24] which is a related paragraph to [23], without amendment, would also necessarily fall as a consequence. As explained above, leave was given to the applicant to amend that paragraph. 76 As will be apparent from the recitation of the history of the proceedings the application for the notice to produce was tortured with the original notice being drafted with such breadth that various amendments were necessarily made, yet the amended notice still contained some paragraphs or aspects which were ultimately set aside. This may have consequences as to any costs order that may flow from this application. Leave to commence the proceedings 77 As noted above, there are two bases to the applicant's claim, sex discrimination contrary to s 17 (and s 5) of the SD Act and victimisation contrary to s 94 of the SD Act. 78 It may be accepted, as the respondents submitted, that leave is required to be granted in respect to each of the two claims. That approach is consistent with the purpose of s 46PO(3A), as described in James v WorkPower. The nature of the two claims are different, as are the legal requirements to establish the claims, and consequently, the allegations in each claim, and their success, are not dependent on the other claim. Sex discrimination Submissions 79 The applicant contended that she suffered the detriments particularised in paragraph [72] of the statement of claim dated 8 November 2019 (statement of claim) and that there "is a strong prima facie case that the detriments were suffered by her because she was a female, in circumstances in which male partners facing allegations of wrong doing have not suffered the same or similar, or even any, detriments". The applicant submitted that the allegations faced by the male partners identified in the confidential affidavit were not the same or similar as the allegations discussed in the Thew investigation but were significantly more serious when compared to those made against the applicant and "in no case did the male subject of the serious allegations of wrong-doing suffer any detriment comparable to that faced by the applicant". It was submitted that proper analysis of the Thew report reflects that the overwhelming majority of the allegations made against the applicant were minor, or reasonable management action. 80 The applicant challenged the conclusions of the Thew investigation, and asserted that they are so obviously wrong that the reliance upon that investigation by the respondents was improper. The applicant also asserted that the terms in which the Thew investigation was described to the members of the partnership was improper with the result that the partners were misled as to the true nature and gravity of the issues raised against the applicant. The applicant ultimately asserted that the report was a sham, that she was facing a "stacked deck", designed to result in expulsion. 81 The applicant contended in the supplementary submissions that the documents produced "make clear that (at least) each of Mr Britten-Jones and Mr Grieve had the firm intention of removing the applicant from the partnership by early November 2018, and that they were prepared to use the minor complaints made by two relatively junior employees as a pretext to achieve that goal". It was submitted that the documents produced in response to the amended notice add significant weight to the probability that the applicant was subjected to the detriments complained of because she was, "in the eyes of Mr Grieve and Mr Britten-Jones, a strong female leader in the firm, and someone of whom they wished to be rid at any price". The applicant submitted that there is a "strongly arguable case that Mr Britten-Jones and Mr Grieve were motivated by a discriminatory purpose particularly given the male demographic of the equity partnership at the relevant time". 82 The respondents contended that (possibly with the exception of order 4) the relief sought in the amended originating application dated 8 November 2019 (amended originating application) could not be ordered, and consequently, the applicant's claim as described in that application is not reasonably arguable. The respondents opposed leave to file the amended pleadings. 83 The respondents also drew attention to the fact that unusually there has already been some consideration of this matter by this Court on an interlocutory basis and that the applicant has not addressed the problems raised by that judgment. Similarly, attention was drawn to the basis of the termination by the AHRC. As noted above, submissions were made about the amended originating application and statement of claim. It was submitted that there were only three allegations before the AHRC, and the other allegations in the statement of claim are new, and in relation to those three both this Court in the interlocutory judgment: Wilson v Britten-Jones at [62]-[84], and the AHRC considered the allegations at their highest and correctly found they were lacking in substance. 84 As to the supplementary submissions, the respondents contended that the applicant's submissions rely on a "mischaracterisation of a small handful of documents to make three flawed arguments in support of her application for leave". First, the respondents noted that the purpose of the amended notice was to enable the applicant to identify a relevant "comparator" for the purposes of s 5(1) of the SD Act. The respondents submitted that the applicant's submission that as there was no evidence in the documents of formal steps being taken against who she alleges were serious male perpetrators that is proof that the applicant has been treated in an unlawfully discriminatory way, inverts the proper application of s 5(1) of the SD Act. Despite the production of "voluminous documents" the applicant has not been able to point to a single comparator to demonstrate that she has been treated less favourably than a man in circumstances that are the same or not materially different. Second, it was submitted that there was no basis for the submission that there was an intention to remove the applicant from the partnership at any price because she was "a strong female leader". Rather, the documents show the respondents were trying to find an outcome which was in the best interests of all involved, including the applicant, and that the respondents were seeking to reach an outcome that did not result in the applicant's removal from the partnership. It was also submitted that the applicant's submissions do not provide an accurate or reliable summary of the documents relied on by the applicant. It was submitted that there is nothing in the documents, properly construed, to support an allegation that the applicant's sex (as opposed to personality) was a relevant factor in the respondents' dealings with her in late 2018 and 2019. Third, the respondents submitted that there is no basis for the allegations as to the Thew investigation being a sham. Consideration 85 Although it was accepted by the parties that the relevant principles in respect to the grant of leave under s 46PO(3A) are outlined in James v WorkPower, the meaning of the statements contained therein, and their application was in issue. The applicant contended that [37] of James v WorkPower appears to contain two different propositions, with the words "not fanciful" representing the low bar, "reasonably arguable" representing a different bar, and it is assumed, a higher judicial threshold. The applicant submitted that it is unnecessary to determine which is the test, because she satisfied both tests. However, ultimately she submitted that she only had to satisfy the not fanciful bar. The respondents submitted that a proper reading of the authorities reflects that it is not as simple as suggesting that the claim is not fanciful, but rather that the phrase must be read in the context in which it was used in the judgment, referring in particular to paragraphs [38]-[39] and [43]. The respondents also referred to the recent decision in Jones v Westpac, where Kerr J reviewed the authorities which have considered this issue. 86 Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant's claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave. 87 There are other considerations, as identified in James v WorkPower, which may impact the resolution of whether to grant leave. Some of those factors, as explained in Matthews v Markos, can also effect the question of whether the claim is reasonably arguable, while other considerations may only be relevant to whether the circumstances are such that leave ought to be granted. If a claim is not otherwise reasonably arguable, those other considerations could not elevate the merit of the claim such as to justify the grant of leave. 88 The applicant relied on some of those considerations, in particular, but not limited to the submission that the allegations of unlawful discrimination are of small compass compared to the balance of the dispute and the majority of the evidence required in relation to the unlawful discrimination allegations is likely to be raised in any event in relation to the allegations of breach of consumer law and breach of fiduciary duty, and the time taken to meet the sex discrimination case in the overall context of the matter as a whole is a very small additional component. 89 Leaving aside whether that is so, 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): Matthews v Markos at [37]; cited in Jones v Westpac at [70]. 90 In James v WorkPower, it was said that s 46PO(3A) sets a bar, but not a particularly high one. Nonetheless it is a bar which has meaning, and one which the applicant must overcome. 91 In that context, it is appropriate to turn first to the respondents' submissions that the applicant's pleadings sought to be relied on are such as to conclude that there is no basis to grant leave, relying particularly on paragraph [43] of James v WorkPower. 92 The applicant contended that this application cannot be determined "on the pleadings", but rather, that I must approach the question of leave by determining whether I am "satisfied that the claims alleged are real, reasonable and not fanciful, and that requires [the Court] to have regard to some of the evidence that's before the Court". 93 The applicant's contention that the pleadings are not relevant to the consideration of leave cannot be accepted. Assessing whether the claims are reasonably arguable can only be assessed against what is alleged. The evidence cannot be considered in a vacuum, absent the legal basis of the claims. As Mortimer J in James v WorkPower observed, an unmeritorious complaint may, inter alia, be one because it is not arguable as a matter of law, or because there is no rational factual substratum for the allegations: James v WorkPower at [43]. That observation necessarily directs attention to the nature of the claim as pleaded, in addition to the factual basis. The pleadings may result in a matter not being arguable as a matter of law. They may also demonstrate, that as a matter of fact, the claims pleaded are not arguable. Moreover, it is plain that the scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the complaint to the Commission: Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [18]. It operates as a constraint on the relief a complainant to the AHRC can later seek in the Court: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (Dye) at [46]. That, of itself, also necessarily directs attention to the pleadings. It follows that a consideration of the complaint to the AHRC is also a necessary component of addressing the issue of whether the applicant has established that leave ought to be granted. The applicant did not address these matters. Nor did the applicant seek to further amend the amended originating application or statement of claim. 94 A number of points were validly made by the respondents as to deficiencies in the amended originating application. There are two observations to be made at the outset: first, at least a number of these same points were made in the interlocutory application in February 2019 and; second, the reasons for the interlocutory orders in relation to the injunction, referred to and accepted some of these deficiencies. Despite the fact the originating application has been amended since the interlocutory application, these issues have not been addressed. These issues were again raised in the written submissions of the respondents in this hearing, filed approximately one month before the hearing. There has been no application to again amend the originating application, and no real attempt to address the submissions. 95 The statement of claim was also challenged by the respondents, including that it raises new claims. Again, some of these deficiencies were raised in the interlocutory hearing, and the same observations as made above apply. 96 As a general observation, while some of the criticisms are matters capable of being remedied if leave to do so were applied for and granted: see for example Matthews v Markos, as explained below, others cannot be. 97 It is unnecessary to repeat each of the respondents' criticisms to the amended originating application and statement of claim, instead concentrating on those which have ramifications on the leave question. That is not to suggest that by failing to refer to other matters raised, there is no validity to the criticisms. Rather they are matters which may be capable of amendment and would not prevent the grant of leave, if it were otherwise appropriate to be granted. 98 The respondents submitted that orders 3 and 7 of the amended originating application, in which the applicant seeks declarations that the respondents contravened s 5 of the SD Act, cannot be made. Section 5 of the SD Act is a definition of sex discrimination and does not operate as a standalone provision. Therefore it is contended that the declaration sought is futile, that it is not arguable as a matter of law as identified by Mortimer J, and that there is no prospect of success as they are orders that cannot be made by the Court. 99 The respondents submitted that in respect to order 4, which asks for an order declaring that the respondents contravened s 17 of the SD Act, the applicant has failed to identify which provisions of s 17 are relied on, and that s 17 by itself does not make anything unlawful. Therefore, it is not an order which can be made in this form. The applicant responded that s 17(3) has been pleaded in the statement of claim, and the question of what subparagraphs in that section are relied on could be addressed by providing particulars, which she has not been asked to do. 100 Order 5 seeks a declaration that the second to forty-eighth respondents (excluding the eighth and eighteenth respondents) caused, aided or permitted the first, eighth and eighteenth respondents to engage in unlawful discrimination against the applicant, and therefore that they are also liable under s 105 of the SD Act. The respondents submit that the applicant misconceives how s 105 of the SD Act operates. It creates accessory liability and does not make the respondents "liable" for the conduct of the three individual respondents. Therefore this relief is misconceived and not arguable. It also submitted that there is no allegation made about s 105 in the statement of claim and therefore there are no allegations of any material fact or circumstance explaining how each respondent either caused, instructed, induced, aided or permitted another person, presumably a particular respondent, to breach s 17 of the SD Act. The respondents referred to Picos v Seven West Media Ltd [2015] FCA 660 at [22]-[24] per Perry J as to the importance of properly pleading a claim based on s 105. It was submitted that in the absence of any attempt to address the allegations and no claim raising s 105 of the SD Act, order 5 is not arguable. 101 The respondents submitted that paragraph [72] of the statement of claim which identifies the basis of the unlawful discrimination claim, is inconsistent with orders 3, 4, and 7 of the amended originating application and also includes new claims. 102 The respondents are correct that s 105 of the SD Act does not make the respondents (all the partners of the firm) liable for the conduct of the three individual respondents as pleaded in order 5, as that provision is directed to accessorial liability. Section 105 states that "[a] person who causes, instructs, induces, aids or permits another person to do an act that is unlawful …shall, for the purposes of this Act, be taken also to have done the act". The statement of claim does not make any allegations in respect to s 105, such that it contains no allegations of any material fact or circumstance explaining how each respondent either caused, instructed, induced, aided or permitted another person, a particular individual respondent, to breach s 17 of the SD Act. The failure to do so is significant, as there is currently no claim raising s 105 of the SD Act: see for example, Picos v Seven West Media Ltd [2015] FCA 660 at [22]-[24] per Perry J. This is particularly relevant given the nature of the allegations relied on in support of the claim of sex discrimination. Leaving aside the issue of the pleadings, the applicant's submissions in support of leave also did not refer to or address the attribution of liability under s 105. The basis of the claims of unlawful discrimination against all but the first, eighth and eighteen respondents is not pleaded or identified. 103 A reading of the pleadings also bears out the respondents' submission that there is inconsistency between [72] of the statement of claim and the amended originating application with the result that there is inconsistent allegations as to what forms the basis of the claims. Concentrating on the statement of claim, the respondents are also correct that there are new allegations in this Court. The former might be able to be cured by amendment, but the latter cannot. 104 The intention of s 46PO is to limit the complaint which is to be brought to the Court to the same complaint as was made to the AHRC, to ensure that the AHRC is always the filter for claims of unlawful discrimination before they are brought to the Courts (save for matters the President considers of public importance). 105 As observed in Travers v State of New South Wales [2000] FCA 1565 at [8]: No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider - or beginning substantially earlier - than that initially complained of. 106 However, the words "must be the same as (or the same in substance as)" and "must arise out of the same (or substantially the same) acts, omissions or practices" that were the subject of the terminated complaint do suggest some degree of flexibility in the application of the section: Dye at [46]-[48]. It contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination: Dye at [46]. The terms of a complaint made to the AHRC should not be read with the same strictures as apply to a pleading in a Court: Dye at [46], citing Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188. It may be that the ambit of a complaint is to be ascertained not by considering its initial form but by considering the shape which it had assumed at the time of its termination: Dye at [47]. 107 Unlike some cases, even leaving aside that the applicant is a lawyer, it is apparent she had legal representation from a very early stage of the event, and there is no reason to suggest that the complaint to the AHRC was not drawn by them. The caution applied to the interpretation of claims in an AHRC complaint that might apply where a complainant has no assistance in drafting that complaint, has a limited basis in this case. 108 As noted above, the applicant accepted in response to questions in reply during the hearing that the claims in paragraph [72(a)] and [72(b)] of the statement of claim were not in the Complaint to the AHRC, although it was argued that they arise from the same set of facts and are not new in substance. However, the facts asserted by the claims in those paragraphs were also not referred to in the body of the Complaint, as evidence of the claims made. They appear to be an extension of the claims made to the AHRC. 109 There were five bases for the sex discrimination complaint before the AHRC, one of which is not pleaded in this case (that is, seeking to prevent the applicant enjoying sabbatical benefits which accrue on 1 March 2019). The remaining four were: excluding the applicant from access to the office on 16 January 2019; the respondents failing to respond to her lawyer's request for information on 18 January 2019; convening a meeting to expel the applicant; and treating the applicant less favourably than male respondents faced with alleged bullying complaints and other allegations of unlawful conduct. Paragraphs [72(c)], [72(f)(iii) and (iv)] of the statement of claim appear to cover the first three of those complaints. The fourth is not referred to in the statement of claim as an allegation, although it may be arguable that it reflects or underpins other aspects of paragraph [72]. It may also be arguable that paragraph [72(e)] is also part of the same circumstances. Paragraph [72(d)], [72(f)(i) and (ii)] appear to relate to the fact of an external investigation, which does not appear to have been the subject of the AHRC Complaint, although it is also arguable they are part of the same circumstances. However, at least [72(a)] and [72(b)] are new allegations and cannot be the basis of the application for leave. That said, the evidence of those matters may nonetheless have been admissible. 110 However, even leaving aside the issues identified with the pleadings, there are also issues with the factual substratum relied on by the applicant. 111 Against that background a number of observations may be made. 112 First, it is apparent from the applicant's submissions, both orally and in writing, that her argument is based on the assertion she "has been treated by the respondents in a way that was less favourable to the applicant than her treatment would have been if she were a male". That was described by the applicant as being "[a]t the heart of the allegations" in [72] of the statement of claim. That is an incorrect approach, which permeated the applicant's submissions. It is timely to recall that in respect to a claim of sex discrimination there are two limbs, as outlined at [37] above, that the applicant is treated less favourably than a man in circumstances that are the same or not materially different (the comparator) and, if so, a reason for the less favourable treatment was the applicant being a woman (causation). 113 Second, the issue of a comparator is a significant aspect of the applicant's submission that she has an arguable case that the respondents' conduct against her was based on her sex. 114 At its highest, the applicant submitted in response to questions during the hearing and in reply that "the like circumstances we identify…as being partners or senior employees who are the subject of allegations of misconduct that are of a level of seriousness sufficient to attract some form of sanction" and that the individual person she identified in her confidential affidavit at [13]-[30] is "the most direct comparator available", as "his conduct is directly comparable in that it involves conduct which is said to give rise to an inability for that person to be with young lawyers of a particular characteristic". It was submitted that "the like circumstances are circumstances of a male faced with allegations of misconduct rising to the same level of seriousness, and then looking at the response of the law firm to those allegations of misconduct, however the misconduct might have arisen". That submission was not expanded upon. Rather it was repeatedly submitted that certain males in the firm engaged in worse conduct than the applicant did. Although the applicant's confidential affidavit relied on two persons as potential comparators the applicant in oral argument submitted that there was "a whole bunch" of men that would be relevant as comparators. That, as explained above, was the context of the orders made in respect to the amended notice to produce. 115 The applicant's submission was that there is not necessarily going to be evidence of a "smoking gun", but rather that an inference can be drawn from the applicant's treatment when compared to the treatment of comparators, identifying it as being a male comparator. It may be accepted that generally speaking email communications and other documents might not necessarily provide evidence that a person's sex was the basis of the actions, and that an inference may be capable of being drawn from the circumstances in which a person is treated by comparison to others in like circumstances. Evidence in relation to a comparator may also be relevant to the causal connection aspect of sex discrimination. However, whether that is so is necessarily fact specific. This is an application for leave, and whether it is reasonably arguable will depend on the facts in this case. Despite the fact that the purpose of the amended notice was said to be directed to providing evidence as to comparators, and the submission was made by the applicant that the Court would be significantly assisted by those documents, no such evidence or documents were referred to or provided in the supplementary submission and tender bundle. 116 No additional evidence or submissions were advanced, save for the applicant's contention that as there is no documentary evidence of formal steps taken in relation to the male partners who she identified in her confidential affidavit, and no formal investigations were undertaken in relation to them, that in itself reflects discriminatory behaviour. At the very least it appears to be submitted that the fact the applicant has raised that there were complaints about certain male partners justifies the proceedings continuing to enable evidence from others who can shed light on the complaints and the manner with which they were dealt. There were two male persons identified in her confidential affidavit evidence [REDACTED], with no additional material provided in relation to those persons. 117 This is in a context where the amended notice to produce which was issued was not confined to those two persons, but related to documents evidencing or recording complaints or allegations against additional male persons and any actions taken as a result. Indeed, the amended notice included, inter alia, the following categories of documents: any and all documents referring to and/or relating to the receipt, management and resolution of any complaints or allegations made or received during the period of 1 January 2015 to date by any member of the partnership alleging bullying, and/or victimisation, and/or sexual harassment, allegedly engaged in by an equity partner, general counsel, employed partner or salaried partner; all documents relating to the reasons for the departure of five partners of the partnership for reasons of conduct in the preceding two years, (four of whom were men); and any and all documents evidencing or referring to complaints and allegations of bullying, victimisation or sexual harassment in relation to five persons, only two of whom were referred to in the applicant's confidential affidavit. In that context, despite the breadth of the amended notice to produce the applicant has not provided any further submission (or evidence) identifying a comparator(s). 118 Indeed, the applicant has paid no real attention to addressing the circumstances relevant for a comparator in this case. Rather, as explained above at [10], the applicant's submission was directed only to the nature of the alleged misconduct (and her perceptions thereof) with no submission as to other matters which may make up the relevant circumstances in relation to a comparator in the context of s 5 of the SD Act. The circumstances are all the objective features which surround the treatment of the applicant in relation to the conduct the subject of the claims: Purvis at [224]. For example, I note that an aspect of the evidence in this case is a letter from the applicant's solicitor to the respondents which threatened to take defamation proceedings against the complainants and a witness, a threat which was itself seen by the respondents as further bullying conduct. Generally speaking, relevant also would be circumstances such as whether a formal complaint was made by a complainant and whether the person complained about admitted the conduct or took rehabilitative steps. That illustrates that it is not as simple as submitting, as the applicant did, that there are male partners who she alleges were involved in more serious conduct, and they were not treated as she has been. This is reflective of the erroneous focus of the submission, as explained above. 119 On the material relied on, leave ought not to be granted simply to enable the applicant an opportunity to cross-examine partners in an attempt to establish what occurred in relation to the two persons on whom she has based her comparator submission, in the hope that she may be able to argue she was treated differently from them. Leaving aside that approach again is inconsistent with what must be established for a claim of sex discrimination, it is the applicant who makes the claim and bears the onus, at this stage, of establishing on the material her case is reasonably arguable. The applicant's submission as to the absence of documents in respect to two persons she contends are comparatives is not a basis on the material before me, without more, to grant leave. 120 Third, rather than addressing the issue of comparators to which the amended notice to produce and supplementary submission was to be directed, the applicant's submissions focussed on various emails unrelated to this issue, at least some of which were referred to in her confidential affidavit. The submission is directed to what the applicant says occurred, focussing on her grievances with the process. It does not relate her arguments to any aspect of the statement of claim or amended originating application, and therefore does not identify what aspect it is said to support. There is also no reference to or application of the SD Act and the applicable principles thereto. Rather, the submissions make broad assertions as to the conduct of the respondents aimed at supporting the conclusion that the applicant was "subjected to detriments complained of because she was, in the eyes of Mr Grieve and Mr Britten-Jones, a strong female leader in the firm, and someone of whom they wished to be rid at any price". 121 The applicant points to no proper basis in the material to support an argument that the fact she is a woman was a relevant consideration in the actions complained of, or that it is reasonably arguable that it is so. Whatever complaints the applicant may have as to the process conducted by the respondents in respect to the complaints made against her, the material produced does not reflect that the events occurred because she is a women. Rather, the material reflects that the bullying conduct and management approach of the applicant was the basis of the actions. For example, in one email (relied on by the applicant) Mr Britten-Jones says, "I don't think [the applicant] appreciates that the evidence is clear that she does not conduct herself properly in her dealings with her staff or that a style that 20 years ago may have been seen as tough, these days is categorised as bullying and not acceptable". 122 In that context, the material in the applicant's tender bundle does not appear to accord with the applicant's characterisation of it in her submissions. The respondents' material (which is also part of what was produced in answer to the second amended notice to produce) illustrates that some of the submissions are inconsistent with the material read as a whole. For example, the submission that the intention was the applicant was "someone of whom they wished to be rid at any price" is not supported by the material. In any event, even assuming that were so, that does not address the issue of causation, that what occurred was because the applicant is a women. 123 Fourth, in addition, aspects of the applicant's submission also misconstrue the communications relied on. For example, the applicant submitted that "[t]here is a strongly arguable case that Mr Britten-Jones and Mr Grieve were motivated by a discriminatory purpose particularly given the male demographic of the equity partnership at the relevant time (the "us" in Mr Grieve's email of 7 November)". The passage referred to in the email of 7 November states "[w]e have a number of people not rowing in the same direction as the rest of us. Lexia is definitely one." There is nothing in the material to suggest that the reference to "us" is in any way reflective of a discriminatory purpose. Nor, without more, does the fact that the partnership is predominantly male (noting that there are female partners). Similarly, as the respondents submitted, simply because the applicant is a women does not mean the alleged treatment was because she was a women. The passage relied on, read in the context of that and other relevant correspondence provided in the tender bundles, does not support the applicant's submission. Rather, as the respondents correctly contend, the submission appears to reflect a misunderstanding of what is required to be established in s 5(1) of the SD Act. 124 Fifth, a number of assertions are made by the applicant which appear to allege that the external investigation conducted by the barrister was a sham, and that it was not to provide an investigation into the relevant events. The applicant had referred in oral argument to the report to illustrate, inter alia, the nature of the allegations against her, the findings and her criticisms of them. Again, the submission fails to focus on what is required to be proved under s 5(1). It does not address the issue of causation, that what occurred was because she is a women. Nothing in the material relied on shows that it is reasonably arguable that anything to do with the compilation of the report, or the contents thereof, occurred because the applicant is a women. 125 Sixth, in the injunction application, where the Court considered the evidence at its highest, Nicholas J concluded at [63]-[68], [73]-[74], [82]-[84]: 63. The most significant matter identified by the applicant in the summary attached to her complaint concerns the convening of a meeting of the partners to consider and vote on a resolution that the applicant be expelled as a partner. The substance of the applicant's complaint in this regard is that one or more of her partners had sought, or at least proposed, to convene a meeting at which such a resolution might be passed. The applicant's case is that she would not have been dealt with in that way were it not for the fact that she is a female and that other male partners in what she says were circumstances that were not materially different from her own, were not subjected to this form of detriment. 64. I did not understand the respondents to submit that subjecting the applicant to the expulsion process could not amount to subjecting her to a "detriment" within the meaning of s 17(3)(c). For the purpose of determining the present application, I accept that it can. However, the respondents submitted that the reason for subjecting the applicant to the expulsion process had nothing to do with the fact that she is a woman. 65. The notice to convene the meeting of equity partners dated 24 January 2019 that is in evidence is signed by Mr Britten-Jones and includes detailed reasons why he intends to propose the resolution to expel the applicant from the partnership. It is not necessary to set his reasons out in detail but they refer, amongst other things, to the complaints of bullying made against the applicant and her response to them when they were raised by Mr Britten-Jones and Mr Grieve during the course of the meeting on 22 November 2018. In his reasons, Mr Britten-Jones says the applicant denied the complaints of bullying, and insisted on formally responding to them, which led him to ask Mr Capelin to arrange for an independent investigator to be engaged to undertake an investigation into the complaints. It was as a result of Mr Capelin doing so that Ms Thew was engaged. 66. Mr Britten-Jones' reasons also refer to Mr Davis' correspondence to which I have previously referred including his letter of 14 January 2019 making allegations of bullying against Mr Britten-Jones and threats to sue the complainants for defamation. According to Mr Britten-Jones' reasons, these threats against the complainants may well be seen as a continuation of the applicant's bullying behaviour, a breach of the Fair Work Act 2009 (Cth), and a breach of the applicant's fiduciary duties to the partners. It is not necessary or appropriate to draw any conclusions as to the correctness of those statements, but when one has regard to Mr Davis' correspondence I think there is some force in what Mr Britten-Jones said on this topic. 67. In his reasons, Mr Britten-Jones also sets out why it is he says that he has lost trust and confidence in the applicant as a partner and why he sees no solution other than for her to be expelled from the partnership. He also states that the partners will need to decide for themselves whether they retain sufficient trust and confidence in the applicant for her to remain as their partner. He then goes on to consider the financial impact of the applicant's departure on the other partners. 68. Mr Britten-Jones' reasons conclude by noting that the applicant will be given an opportunity to address the meeting and make written and oral submissions to the partners before they make their decision. … 73. There is also nothing in the evidence to suggest that Mr Britten-Jones' or any other respondent's treatment of the applicant had anything to do with the fact that she was a female partner of the firm. 74. Evidence given by Mr Morris indicates that since 2016 the firm has appointed 22 new partners, 10 of whom are women. In 2018 five appointments were made and three of those appointments were women. Of course, it does not follow that the applicant may not have been the subject of unlawful discrimination on account of her being a woman. However, that evidence, as general as it is, does not suggest to me that the partnership would be inclined to expel, or take steps to expel, a partner for the reason, or for reasons that include, that the partner is a woman. … 82. I do not regard the evidence on this issue as persuasive. It is essentially secondary evidence of the contents of fragments of documents that could easily have been put into evidence by the applicant following the issue of a notice to produce. I raised this with counsel for the applicant during the hearing, even suggesting that he make a call for the documents that Mr Davis referred to in his affidavit. That suggestion was not taken up. 83. In any event, to the extent that there is any force in the suggestion that Mr Britten-Jones, or any other partner, may wish to see the applicant leave the firm for reasons other than set out in Mr Britten-Jones' notice of meeting, there is no reason to think that it has anything to do with the applicant's sex. 84. The principal difficulty I have with the applicant's claim to interlocutory relief based on breach of fiduciary duty is the absence of any evidence to suggest that Mr Britten-Jones or any other partner wishes to see the applicant expelled from the partnership for some improper purpose. The only improper purpose that the applicant has identified is expulsion of the applicant for the reason, or reasons that include, the fact that the applicant is a woman or that she had made or may make a sexual discrimination complaint against the partners. For reasons I have already explained, I do not think the evidence provides any support for either of those contentions. 126 The Court now has what are presumed to be the underlying documents referred to in the above passage ([82]), and other material relied on by the parties. Nothing in the material now relied on by the applicant on this application gives rise to that link of causation being reasonably arguable. To the contrary, as explained above, the material put before this Court reflects that the respondents' concerns about the applicant related to the bullying allegations and her management style, including how the applicant reacted when notified of the complaints. There is nothing in the material relied on which supports or makes it reasonably arguable that the applicant's treatment had anything to do with the fact she is a women, as opposed to her behaviour. I note that before Nicholas J the applicant argued that there was another motive behind the respondents' conduct. The applicant's submission based on the documents now before the Court appears to be that Mr Britten-Jones benefited by assuming the leadership positions the applicant was removed from. That does not advance this aspect of the case. Rather, it identifies self-interest as a motivating factor, rather than the applicant's sex. 127 In that context I also note that the AHRC has dealt with the merits of the Complaint, terminating it because it lacked substance: see James v WorkPower at [38(3)]. In so far as additional material was before this Court which was not before the AHRC, the observations above similarly apply. 128 The applicant has the onus of establishing that her claim is reasonably arguable, in the sense described in James v WorkPower and subsequent cases. 129 As noted above, there are significant issues in the manner in which this case is pleaded, including new allegations and no identification of the factual or legal basis of the claims against 45 of the respondents. 130 As to the factual substratum, the applicant has gone down the path of obtaining material by a notice to produce and was given the opportunity to, and did, put before the Court the material she submitted supported her application for leave. For the reasons above, the material before the Court and the applicant's submission in support are lacking. Based on the evidence now before the Court the applicant has not established that her claim is reasonably arguable. That the applicant is aggrieved by the process adopted by the respondents, does not make her claim of unlawful discrimination on the basis of sex, reasonably arguable. 131 Accepting the bar for the grant of leave is not particularly high, there is still a bar which must be overcome. On all the material provided, the applicant has not established that her claim in relation to unlawful discrimination on the basis of sex is reasonably arguable. Victimisation 132 The applicant did not address the victimisation claim in her written or oral submission save as to reply to the respondents' submission. That reply did not address the substance of the claim or point to any evidentiary basis for the claim. Nor did it address the conclusions by Nicholas J in the interlocutory judgment and by the AHRC when dismissing the claim, that there was no factual basis for the claim. Rather, the submission was a general assertion that it is a proper claim. 133 In opposing leave with respect to the claim of victimisation, the respondents pointed to the fact that the amended originating application seeks a declaration that each respondent committed a criminal offence (being victimisation), not a declaration of unlawful discrimination, and that is beyond the Court's jurisdiction and therefore not arguable. The respondents contended that decisions of this Court suggest the Court has no jurisdiction to deal with victimisation in civil proceedings: Walker v State of Victoria [2012] FCAFC 38; (2012) 297 ALR 284 at [98]-[100]; Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 at [123]; Chen v Birbilis [2016] FCA 661; Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 at [6]ff.; Winters v Fogarty [2017] FCA 51 at [24]ff.; Tropoulos v Journey Lawyers at [312]-[319]. The respondents contended that in any event, the victimisation claim is not reasonably arguable. It was contended that the applicant advances claims that were not the subject of the terminated Complaint; the new allegations fail to identify any material fact or address the elements of an offence of victimisation to which the respondents can respond; s 94 relevantly applies to each of the individuals, not a group of individuals as alleged in the statement of claim; the applicant must set out the material facts that support an allegation that each person alleged to have victimised her had knowledge of her allegations under the SD Act; that the applicant has failed to identify any grounds that allege each and all of the respondents knew the applicant made allegations that a person has "done an unlawful act by reference to Part II of the SDA"; and that the applicant has failed to identify any material facts that support an allegation that each respondent subjected her to detriment and had the intention of subjecting her to detriment. 134 The applicant's written reply was that: There is no decided case that definitively resolves the question of whether or not the Court has jurisdiction to consider victimisation complaints and given the seriousness of the victimisation alleged in these proceedings and the apparent strength of the factual basis for that claim, this is not a matter that could properly be resolved on an interlocutory basis. 135 In oral reply the applicant submitted: … the victimisation claim is a complex claim. There is a divergence of jurisprudence about whether the court can attend and hear it at all. It's a matter which will require pleading on both sides, and evidence on both sides, and submissions on both sides. But it's not untenable. It's certainly not untenable. It is so inconsistent, in our submission, with the objects and purpose of the Act that a party who feels aggrieved should be further penalised by asserting her entitlement under the Act and her rights that the court will, only with great reluctance, not proceed to hear such a claim. 136 However, as noted above, the applicant has failed to identify any evidentiary basis for the claim, nor did she attempt to do so. General assertions as to the strength of the case are of limited assistance in the absence of any consideration of the evidential basis. This is particularly so where, as in this case, the respondents challenged the basis of the claim and both the interlocutory judgment and the AHRC found there was an absence of evidence as to the casual link necessary to establish victimisation under s 94. In the interlocutory judgment Nicholas J concluded at [78]-[79]: 78. There is no reference in Mr Britten-Jones' reasons to any complaint or proposed complaint by the applicant to the Commission and nothing in the document to suggest that Mr Britten-Jones issued the document on the ground that the applicant had made, or proposed to make, a complaint under the SD Act or that she had made any allegation that Mr Britten-Jones (or any other respondent) had done any act that may be unlawful by reason of a provision of Part II of the SD Act. 79. I do not think there is any arguable basis for drawing an inference that Mr Britten-Jones issued the notice of meeting on any of the grounds referred to in s 94(2) of the SD Act. In the circumstances, I am not satisfied that the applicant has any arguable case that he or any other of the respondents have committed an act of victimisation against the applicant within the meaning of s 94(2) of the SD Act. 137 The conclusion of the AHRC as to the victimisation claim is recited above at [21]. Suffice to say that the AHRC was satisfied that the complaint lacked substance. 138 There appears to be a live issue as to the jurisdiction of this Court to hear such a claim and that a decision of the Full Court, at the least, would be necessary for that issue to be authoritatively determined: Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 at [16]. In that context, the state of the law ought not to be a basis to refuse leave if the applicant otherwise has a reasonably arguable case. That said, as observed above, the applicant has not pointed to any material to support the factual basis of the claim. 139 The applicant has not identified any material facts as to how each of the respondents who is alleged to have victimised her had knowledge of any of the matters identified in s 94 of the SD Act or that any action taken by each respondent was as a result of those matters. 140 I note also that there is a disconnection between the order sought in the amended originating application in relation to the claim for victimisation, and the allegations in paragraphs [73] and [74] of the statement of claim. 141 Importantly, the respondents submitted that paragraphs [73] and [74] of the statement of claim contain new allegations. In paragraph [73], which relates to s 94(2)(a) and (f) of the SD Act, the applicant makes new allegations to those made to the AHRC, being subparagraphs (a), (b), (c), and (f). In paragraph [74] which relates to s 94(2)(g) of the SD Act, the new claims are subparagraphs (a) and (b). Although this was a basis of the respondents' challenge to those claims, the applicant did not advance any submission to the contrary. As noted above, leave under s 46PO(3A) can only be granted in relation to an application which is the same, or the same in substance as the complaint to the AHRC. The only bases that were before the AHRC in relation to both [73] and [74] were convening a meeting to expel the applicant from the partnership: [73(d)], [74(c)], and failing to comply with the notice to produce: [73(e)], [74(d)], as to which the AHRC concluded: With respect to the claim that the respondents failed to provide Ms Wilson with requested documents, I refer to the information above and while again noting that this is an issue that appears to be in dispute between the parties, I consider that there is no or no sufficient information before the Commission to support that any action referred to under section 94(2) was a 'substantial or operative factor' for any alleged failure to produce requested documents. In relation to convening a meeting on 5 February 2019, as advised above, it appears that the reason Piper Alderman sought to convene this meeting was the outcome of the investigation into bullying allegations made against Ms Wilson which substantiated 34 out of the 39 allegations against her. I consider that there is no or no sufficient information before the Commission to support that any action referred to under section 94(2) was a 'substantial or operative factor' why Piper Alderman sought to convene this meeting. 142 As is made plain, a claim of victimisation requires that the action referred to in s 94(2) must be the substantive or operative factor for the respondents' acts: Penhall-Jones v New South Wales at [85]. As with the evidentiary basis, the causal connection was not addressed by the applicant in relation to any aspect of the victimisation claim. I note as an aside that two of the new allegations in [73] and [74] appear to have occurred (or is said that they were to occur) at a time before the applicant says she was aware that the bullying complaints had been made, and therefore the matters under s 94(2) could not have been a factor for those acts. This is further reflective of a failure by the applicant to address the issues relevant to a claim of victimisation. 143 Leaving aside the issue as to whether this Court has jurisdiction as to victimisation, the allegations of victimisation pleaded in paragraphs [73] and [74] of the statement of claim are factually not reasonably arguable as interpreted in James v WorkPower, and later authorities. Again accepting the bar for the grant of leave is not particularly high, even assuming this Court has jurisdiction, the applicant has not established that she has a reasonably arguable case in relation to the claim of victimisation. Conclusion 144 For the reasons given above, leave to commence proceedings in relation to the claims of sex discrimination and victimisation under the SD Act is refused. 145 I note that the applicant also agitates other claims in her originating application which can now proceed. I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

SCHEDULE OF PARTIES NSD 214 of 2019 Respondents Second Respondent: SHANNON ADAMS Third Respondent: FLORIAN AMMER Fourth Respondent: MICHAEL BACINA Fifth Respondent: ANDREA BEATTY Sixth Respondent: DONNA BENGE Seventh Respondent: MEGAN CALDER Eighth Respondent: TIM CAPELIN Ninth Respondent: TIM CLARK Tenth Respondent: TIM COLEMAN Eleventh Respondent: JAMES DICKSON Twelfth Respondent: PETER DWYER Thirteenth Respondent: GEOFF EMMETT Fourteenth Respondent: DAVID EY Fifteenth Respondent: ANNE FREEMAN Sixteenth Respondent: MARK GORDON Seventeenth Respondent: SEBASTIAN GREENE Eighteenth Respondent: GORDON GRIEVE Nineteenth Respondent: TOM GRIFFITH Twentieth Respondent: CHRIS HARTIGAN Twenty First Respondent: SINA KASSRA Twenty Second Respondent: TIM LANGE Twenty Third Respondent: MICHAEL LHUEDE Twenty Fourth Respondent: MARTIN LOVELL Twenty Fifth Respondent: SIMON MORRIS Twenty Sixth Respondent: IAN NATHANIEL Twenty Seventh Respondent: TIM O'CALLAGHAN Twenty Eighth Respondent: ANDREW RANKIN Twenty Ninth Respondent: ROBERT RIDDELL Thirtieth Respondent: ANDREW ROBERTSON Thirty First Respondent: THOMAS RUSSELL Thirty Second Respondent: GREG TAYLOR Thirty Third Respondent: SIMON VENUS Thirty Fourth Respondent: SIMON WARD Thirty Fifth Respondent: ASHLEY WATSON Thirty Sixth Respondent: GREG WHYTE Thirty Seventh Respondent: TED WILLIAMS Thirty Eighth Respondent: MARK WILLIAMSON Thirty Ninth Respondent: BRUCE CAMERON Fortieth Respondent: MICHAEL COKER Forty First Respondent: JAMES MACDONALD Forty Second Respondent: ALASDAIR MCLEAN Forty Third Respondent: HUGH SCALES Forty Fourth Respondent: MJC LEGAL PTY LTD ACN 127 069 229 AS TRUSTEE OF THE MJC LEGAL TRUST Forty Fifth Respondent: JAM LEGAL PTY LTD ACN 127 357 046 AS THE TRUSTEE OF THE JAM LEGAL TRUST Forty Sixth Respondent: ARM LEGAL PTY LTD ACN 600 054 037 AS TRUSTEE OF THE ARM LEGAL TRUST Forty Seventh Respondent: HS LEGAL PTY LTD ACN 127 356 852 AS THE TRUSTEE OF THE HS LEGAL TRUST