FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARNOLD v COMPASS GROUP (AUSTRALIA) PTY LTD & ANOR | [2014] FCCA 1999 |
| Catchwords: COURTS AND JURISDICTION – Whether jurisdiction to hear sex discrimination claim – whether sex discrimination claim made to the Australian Human Rights Commission. PRACTICE AND PROCEDURE – Application in a case for dismissal or strike out on basis of no reasonable prospect of success, lack of particularity or failure to comply with earlier orders – whether alternative orders for points of claim with sufficient particularity. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.05, 4.05, 10.01(3)(m), 13.03B(1)(a), 13.10 |
| Applicant: | CHARLOTTE ARNOLD |
| First Respondent: | COMPASS GROUP (AUSTRALIA) PTY LTD |
| Second Respondent: | WOODSIDE ENERGY LTD |
| File Number: | PEG 98 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 5 September 2013 |
| Date of Last Submission: | 5 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 10 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R McCabe |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the First Respondent: | Ms L Nickels |
| Solicitors for the First Respondent: | Norton Rose Fulbright Australia |
| Counsel for the Second Respondent: | Mr N Ellery |
| Solicitors for the Second Respondent: | Corrs Chambers Westgarth |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth):
(a)paragraphs 11, 12, 13, 15 and 16; and
(b)the words:
(i)“sexual discrimination and victimisation” in paragraph 5; and
(ii)“and sexual discrimination” in paragraph 14,
of the Applicants Points of Claim filed 16 July 2013 be struck out, but otherwise the First Respondent’s Application in a Case filed 13 August 2013 be dismissed.
The Applicant have leave to file and serve an Amended Points of Claim, including sufficient particulars of each matter of fact and law relied upon by the Applicant, by 7 November 2014.
Any Application in a Case for costs in relation to the First Respondent’s Application in a Case filed 13 August 2013 be filed and served by 7 November 2014.
The matter be listed for a further directions hearing at 9.30am on 18 November 2014.
| FEDERAL CIRCUIT COURT AT PERTH |
PEG 98 of 2013
| CHARLOTTE ARNOLD |
Applicant
And
| COMPASS GROUP (AUSTRALIA) PTY LTD |
First Respondent
| WOODSIDE ENERGY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent, Compass Group (Australia) Pty Ltd[1] has filed an Application in a Case dated 13 August 2013 seeking various orders in relation to the applicant’s, Charlotte Arnold’s,[2] substantive Application to the Court filed 10 May 2013 and Points of Claim filed on 16 July 2013.[3] The Substantive Application and Points of Claim, read together, allege that Ms Arnold was sexually harassed, sexually discriminated against and victimised by Compass Group and the second respondent, Woodside Energy Ltd,[4] whilst employed by Compass Group and working on a Woodside vessel.
[1] “Compass Group”.
[2] “Ms Arnold”.
[3] “Substantive Application” and “Points of Claim” respectively.
[4] “Woodside”.
The orders sought in the Application in a Case essentially seek to have the Substantive Application dismissed, struck out or further particularised, either in whole or part, and the submissions in support of and in opposition to those orders are set out and considered below. Before setting out the details of the Application in a Case it is convenient to set out some preliminary matters, including the evidence relied on by the parties, and the background to, and detail of, the Substantive Application and Points of Claim.
Evidence
Compass Group relied on the affidavit of Rachael Ellen Jacqueline Smith (a lawyer with Compass Group’s lawyers) sworn 13 August 2013[5] in support of the Application in a Case.
[5] “Ms Smith’s Affidavit”.
Ms Smith’s Affidavit:
a)annexes Ms Arnold’s complaint filed in the Australian Human Rights Commission[6] on 23 November 2011[7] alleging that she had been sexually harassed and victimised contrary to the Sex Discrimination Act 1984 (Cth);[8]
b)annexes a Notice of Termination dated 18 March 2013[9] from a delegate of the President of the AHRC indicating that the AHRC Complaint had been terminated under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth)[10] because the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation; and
c)summarises the content of annexures, being an exchange of correspondence between Compass Group’s lawyers and Ms Arnold’s lawyers concerning the adequacy of pleadings and particulars.
[6] “AHRC”.
[7] “AHRC Complaint”.
[8] “SD Act”.
[9] “AHRC Notice of Termination”.
[10] “AHRC Act”.
Woodside relied upon the affidavit of David John Paton (a lawyer with Woodside’s lawyers) affirmed 2 September 2013.[11] Mr Paton’s Affidavit annexes an exchange of correspondence between Woodside’s lawyers and Ms Arnold’s lawyers concerning the adequacy of pleadings and particulars.
[11] “Mr Paton’s Affidavit”.
Summaries of the contents of the annexures in relation to the adequacy of the pleadings and particulars are set out below.[12]
[12] See paras.24-39 below.
AHRC Complaint
The AHRC Complaint was prepared with the assistance of Ms Arnold’s lawyers, and her lawyers’ address is given as her address.[13]
[13] AHRC Complaint, page 1.
The AHRC Complaint complains about Compass Group and Woodside, the former in its capacity as Ms Arnold’s employer and the latter in its capacity as a person for whom Ms Arnold says that she worked on a Woodside vessel, under a contract between Woodside and Compass Group.[14]
[14] AHRC Complaint, page 2.
The AHRC Complaint contains a section entitled “Why are you complaining to the Commission?” This is a tick or cross a box section where the applicant says “I am complaining because I believe”. It then sets out a choice of matters which may be ticked or crossed with respect to why an applicant believes they are complaining. The first box, which Ms Arnold neither ticked nor crossed says “I have been discriminated against because of my sex”.[15] The second box which Ms Arnold has been crossed says “I have been sexually harassed”.[16] There are then a number of other heads of discrimination, namely, race, disability, age, breach of human rights by a federal government agency and discrimination in employment by reason of matters other than sex which are not ticked or crossed by Ms Arnold. The final box is crossed by Ms Arnold: that box reads “I have been treated unfairly for another reason”. The AHRC Complaint then provides for the reason to be stated, and Ms Arnold says as follows:
I was victimised (within the meaning of s 94 of the Sex Discrimination Act 1984 (Cth) (“the Act”)) because I made an allegation that a person (ie a workplace participant who was an employee of the Principal Woodside) has done an act that is unlawful by reason of the provision of Part II of the Act (ie sexual harassment).[17]
[15] AHRC Complaint, page 2 (emphasis in original).
[16] AHRC Complaint, page 2 (emphasis in original).
[17] AHRC Complaint, page 3 (emphasis in original).
The AHRC Complaint then asks “When did this happen?” Ms Arnold has indicated “Approximately July 2010 to 25 November 2011”.[18]
[18] AHRC Complaint, page 3.
The AHRC Complaint then asks an applicant to describe “What happened?” Ms Arnold provides the following details:
a)under the heading “Employment details” details of her employment with Compass Group from in or about June 2010 providing catering services to Woodside staff on board the vessel “Cossack Pioneer”, and her transfer in March 2011 to the vessel “Okha” where she provided the same services prior to her resignation on 25 November 2011;[19]
[19] AHRC Complaint, pages 3-4 at paras.1-5.
b)under the heading “Sexual harassment” details of alleged bullying and sexual harassment by Luke Mr Addicoat,[20] a Woodside employee,[21] the latter being:
[20] “Mr Addicoat”.
[21] AHRC Complaint, pages 4-5 at paras.6-13.
a)making sexist and derogatory comments about women to … [Ms Arnold]; and
b)making derogatory comments about … [Ms Arnold’s] supervisor’s lesbian sexuality to … [Ms Arnold] and stating that the supervisor’s sexuality gave … [Ms Arnold] an advantage at work because she was a woman.[22]
c)Ms Arnold then alleges that on a specific day, 13 August 2011, while at work on the vessel “Okha” Mr Addicoat said to her the following:
Women should be at home having babies, cooking, cleaning and ironing creases in their husband’s jeans.
Don’t you know women means kitchen spelt backwards?[23]
Ms Arnold said that Mr Addicoat’s conduct was unwelcome and made her feel offended, humiliated and intimidated.[24]
[22] AHRC Complaint, page 5 at para.11(a) and (b).
[23] AHRC Complaint, page 5 at para.12.
[24] AHRC Complaint, page 5 at para.13.
Under the heading “Allegation of sexual harassment by Luke Addicoat” Ms Arnold then sets out a process whereby she informed her supervisor about what had allegedly occurred, and the incident was then reported to more senior managers, one of whom advised that he would inform a manager with Woodside. Ms Arnold says that the following day another employee alleged and reported similar conduct by Mr Addicoat to the manager with Woodside who had been informed of Ms Arnold’s complaint by managers of Compass Group. The day after that, Ms Arnold and the other employee jointly submitted a report concerning Mr Addicoat’s alleged bullying in the workplace to the Woodside manager concerned. Ms Arnold says that that report included allegations of conduct of a sexual nature that was unwelcome and which made her feel offended, humiliated and intimidated.[25]
[25] AHRC Complaint, pages 5-6 at paras.14-19.
Under the heading “Response to the allegation by … [Compass Group and Woodside]” Ms Arnold alleges she and Portia Barrett[26] were interviewed by officers of Compass Group and Woodside jointly, following which she returned to work, notwithstanding that she had expressed concerned that she would be victimised because she had made the allegations.[27] Ms Arnold asserts that Compass Group and Woodside “failed to adequately address the sexual harassment by Luke Addicoat and failed to ensure that … [Ms Arnold] would not be subjected to victimisation as a result of making the allegations.”[28]
[26] “Ms Barrett”.
[27] AHRC Complaint, pages 6-7 at paras.22-29.
[28] AHRC Complaint, page 7 at para.31.
Under the heading “Victimisation as a result of making an allegation” Ms Arnold alleges that upon her return to work on the vessel “Okha” on or about 30 August 2011 she “experienced significant bullying and harassment by other workplace participants … including but not limited to the number of single berth cabins available to catering staff being reduced.”[29] Ms Arnold submits that the bullying and harassment was a direct result of her making the allegations set out above, and that she suffered various ailments as a consequence of the victimisation which she had reported to various more senior personnel on the vessel “Okha” on several occasions.[30]
[29] AHRC Complaint, page 7 at para.32.
[30] AHRC Complaint, page 8 at paras.33-35.
Ms Arnold alleges that the victimisation continued to the point where she felt that it was untenable for her to continue in her employment on the vessel “Okha” and she resigned from her employment with Compass Group on 25 November 2011.[31]
[31] AHRC Complaint, page 8 at paras.36-37.
Under the heading “How has this affected you?” and in response to the request to “Please tell us how what you are complaining about has affected you” Ms Arnold alleges that:
1.As a result of making the allegations of sexual harassment … [Ms Arnold] suffered intensive and sustained bullying and harassment by workplace participants.
2.As a result of the victimisation she suffered, … [Ms Arnold] was forced to resign.
3.Following her resignation, … [Ms Arnold] sought alternative employment with … [Compass Group]. These requests were denied or ignored.
4.Despite her efforts, … [Ms Arnold] has been unable to secure comparable employment.
5.[Ms Arnold] has endured pain and suffering, hurt and humiliation.
6.[Ms Arnold] has experienced stress and anxiety and has borne the cost of medical treatment for such.[32]
[32] AHRC Complaint, page 9.
Attached to the AHRC Complaint as attachment 1 is a document headed “Luke Addicoat bullying in the workplace – OKHA” prepared by Ms Arnold and Ms Barrett.[33] What follows is a general complaint about various aspects of Mr Addicoat’s alleged behaviour in the workplace. The tenor of the attachment is to complain about behaviour considered to be bullying, harassment and intimidation by Mr Addicoat and in relation to which it is alleged that he makes “sexist remarks” to women. What are then said to be examples of Mr Addicoat’s alleged “harassing comments and behaviour” are given. The alleged comments include:
[33] AHRC Complaint, attachment 1, page 2.
- Women should be at home not offshore.
- Women do not belong out here.
- Portia should be at home having babies instead of being out here.
- Women means kitchen spelt backwards.
- ‘Fat Baron Lesbian Cunt’ is the words he uses in describing or referring to the Chief Caterer.
- The first time we met Luke he called her this, along with stories in an attempt to influence us into fearing and disliking the Chief Caterer. He still refers to her using all, or a combination of these words.
- ‘Hey woman cook me some eggs’. Portia asked him not to talk to me like that…. He then gleefully repeated it in front of other crew members, and again he was told to stop the remarks as it was offensive and disrespectful.
- Portia is sweet talking the Chief Cook so as to obtain work onboard the Cossack.
- …
- Refers to one of our supervisors as ‘alpha male’, ‘she who must be obeyed’ and constantly making rude remarks about her sexuality.
- …
- He has said that a female supervisor is trying to sleep with female caterers and that is the only reason they have jobs here.
- Girls use their woman magic to get what they want. They shake their arses at the female Chief Caterer.
- ….[34]
[34] AHRC Complaint, attachment 1, page 3.
AHRC Notice of Termination
The AHRC Notice of Termination provides as follows:
This complaint alleging unlawful discrimination under the Sex Discrimination Act 1984 (Cth) has been terminated under section 46PH(1)(i) of the … [AHRC Act] on the ground that I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.
Reasons for this decision are provided in Attachment A.[35]
[35] Ms Smith’s Affidavit, annexure REJS-2.
A copy of the reasons for decision[36] referred to in the AHRC Notice of Termination is not before the Court.
[36] “AHRC Reasons for Decision”.
Substantive Application
On 10 May 2013, the Substantive Application was filed with this Court alleging “unlawful discrimination” under s.46PO(1) of the AHRC Act. The Substantive Application is signed by a lawyer for Ms Arnold.
In the Substantive Application Ms Arnold makes claims in relation to sexual harassment and victimisation. Ms Arnold:
a)alleges that the discrimination complained of is said to be “Sexual Harassment” and “Victimisation”, and to be “As detailed in the original complaint to Australian Human Rights Commission – attached.”;[37] and
b)asked to state the relevant sections of “the Act” relevant to the claim, Ms Arnold has specified ss.28A-28L and 94 of the SD Act.[38]
[37] Substantive Application, Part B, Section 3.
[38] Substantive Application, Part B, Section 5.
On 18 June 2013, at the first hearing date for the Substantive Application, the Court made orders including an order that the Applicant was required to:
… file and serve points of claim, with sufficient particularity of each matter of fact and law relied upon by the applicant…[39]
[39] “Order for Sufficient Particulars”.
Points of Claim
In the Points of Claim Ms Arnold alleges that:
a)she commenced employment with Compass Group as a caterer in June 2010 on the vessel “Cossack Pioneer”, and was transferred to the vessel “Okha” on or about 28 March 2011, both vessels being owned or operated by Woodside as the “principal” as defined in s.4(1) of the SD Act, with Compass Group contracted to provide additional catering staff to support catering staff employed directly by Woodside;[40]
[40] Points of Claim, paras.1-3.
b)Mr Addicoat was an employee of Woodside who worked on the Cossack Pioneer and Okha vessels as a caterer (until 6 July 2010) and then a trainee production operator, and was a “workplace participant” as defined in s.28B(7) of the SD Act, and was so employed until on or about 17 August 2011 when he ceased to work on the same vessel as Ms Arnold;[41]
[41] Points of Claim, para.4.
c)whilst employed by Compass Group and Woodside, Ms Arnold was subject to:
i)sexual harassment;
ii)sexual discrimination; and
iii)victimisation;[42]
[42] Points of Claim, para.5. The “Sexual Harassment Claim”, “Sex Discrimination Claim” and “Victimisation Claim”.
d)Mr Addicoat sexually harassed Ms Arnold by engaging in unwelcome conduct of a sexual nature that a reasonable person would have anticipated would make her feel offended, humiliated and intimidated, and provides the following particulars:
PARTICULARS
a)leering at [Ms Arnold] or physically standing over [Ms Arnold] while she was working;
b)making sexist and derogatory comments about women to [Ms Arnold], including saying to [Ms Arnold], on or about 13 August 2011, the following words to the effect of: ‘Women should be at home having babies, cooking, cleaning and ironing creases in their husbands’ jeans’; and ‘Don’t you know ‘women’ means kitchen spelt backwards?”; and
c)making derogatory comments about the sexuality of [Ms Arnold’s] supervisor, Julie Donnan (‘Donnan’), Chief Caterer of [Woodside], to [Ms Arnold] and stating that the supervisor’s sexuality gave [Ms Arnold] an advantage at work because she was a woman.[43]
[43] Points of Claim, para.7 (emphasis in original).
e)Woodside failed to take all reasonable steps to prevent Mr Addicoat from sexually harassing Ms Arnold, and provided particulars as follows:
PARTICULARS
a)The male-dominated nature of the work environment and the gendered division of labour (with female employees concentrated in catering work) was such that [Woodside] should have been proactive in addressing sexual harassment issues.
b)Appropriate policy and training was not properly implemented prior to the sexual harassment occurring. A Diversity – Guideline document was introduced to explain why [Woodside’]s Diversity Policy was important after [Ms Arnold] made allegations about Addicoat’s conduct …
c)The size of [Woodside] is such that it should have had the resources and sophistication to address these issues.[44]
[44] Points of Claim, para.9.
f)under s.106 of the SD Act Woodside was vicariously liable for the sexual harassment of Ms Arnold by Mr Addicoat;[45]
[45] Points of Claim, paras.9 and 10.
g)Compass Group and Woodside sexually discriminated against Ms Arnold in her employment under ss.5 and 14(2)(d) of the SD Act, directly by subjecting her to a detriment which was suffered as a result of allowing Ms Arnold to be continuously subjected to bullying and harassment, including sexual harassment, by Mr Addicoat in the course of Ms Arnold’s employment. The conduct was particularised as follows:
PARTICULARS
a)making derogatory comments about the quality of [Ms Arnold’s] work such that [Ms Arnold] and other workplace participants could hear him;
b)complaining about the presence of contract workers on the vessels such that [Ms Arnold] and other workplace participants could hear him;
c)making offensive comments about other workplace participants to [Ms Arnold] and pressuring [Ms Arnold] to join in; and
d)the conduct described in paragraph 7 above.[46]
[46] Points of Claim, para.12. The “conduct described in paragraph 7” is that in para.23(d) above.
h)Ms Arnold alerted Compass Group and Woodside to the sexual harassment and sexual discrimination, as follows:
PARTICULARS
a)Immediately following the incident on or about 13 August 2011, [Ms Arnold] informed her supervisor, Glenn Evans (Chief Caterer employed by the [Woodside]), of what had occurred.
b)[Ms Arnold] reported the incident to Katrina Madden (‘Madden’), Recruitment and Logistics of [Compass Group], and Shane Byrne (‘Byrne’), Area Manager of [Compass Group].
c)On or about 14 August 2011, [Ms Arnold] spoke with Smith[47] regarding the incident.
[47] The Points of Claim do not identify who Smith was or who Smith worked for, but the AHRC Complaint alleges that “Graeme Smith” was the Offshore Installation Manager for Woodside: AHRC Complaint, page 5 at para.16.
d)On or about 15 August 2011, [Ms Arnold] and [Ms Barrett], another Caterer and workplace participant, jointly submitted a report to Smith.
e)On or about 23 August 2011, [Ms Arnold] met with Helen Seiler (‘Seiler’), Human Resources of [Compass Group] and Dee Bignell (‘Bignell’), Human Resources of [Woodside], and …[provided] them with further detail of the allegations.
f)During his meeting [Ms Arnold] informed Seiler and Bignell that she:
(i) was concerned that on return to work she would be victimised by other workplace participants for making an allegation about Addicoat to management; and
(ii) wanted … Addicoat to apologise and be counselled for his behaviour; and
(iii) wanted all workplace participants to receive training in acceptable workplace behaviour.
g)[Ms Barrett], on behalf of herself and [Ms Arnold], gave Bignell a list of workplace participants that they were concerned would participate in the victimisation;
h)[Ms Arnold] received no further contact from the [Woodside] about the allegations and investigation.
i)On or about 26 August 2011 and 29 August 2011, [Ms Arnold] informed Byrne and Seiler that she was nervous and anxious about returning to the vessel from scheduled leave and concerned that the other workplace participants would victimise her because she made the allegations.
j)On or about 30 August 2011, [Ms Arnold] returned to work on the Okha vessel. She reported to Lyndsay Harney (‘Harney’), OIM of [Woodside], and expressed her concerns that she would be victimised because she had made the allegations.
k)On or about 7 September 2011 [Ms Arnold] emailed Seiler and again stated her concern about the conduct of Addicoat and the effect on her.
l)On or about 12 September 2011, Seiler emailed [Ms Arnold] and [Ms Barrett] to provide an update on the investigation into their allegations, noting that she had touched base with Bignell and [Woodside] was still investigating. Seiler states: ‘I did indicate that [Ms Arnold] has been out there on her own and now [Ms Barrett] will be also, not the ideal situation to be put in with this unresolved’.
m)On or about 13 September 2011, Byrne emailed [Ms Arnold] to advise that Addicoat had been moved to another vessel. [Ms Arnold] received no further contact from [Compass Group] about the allegations and investigation.
n)On or about 25 November 2011, [Ms Arnold] emailed Byrne, Madden and Seiler to advise them that she would not be returning to the Okha vessel as a direct result of the bullying and harassment [Ms Arnold] had suffered.[48]
[48] Points of Claim, para.14 (emphasis in original).
i)she was the subject of victimisation contrary to s.94 of the SD Act by being subject to detriment as a result of making allegations against Mr Addicoat, as follows:
PARTICULARS
a)[Ms Arnold] notified [Compass Group and Woodside] of her concerns that she would be victimised by other workplace participants as a result of her making allegations against Addicoat: …
b)Late August 2011, [Woodside] introduced a Diversity – Guildeline document on the Okha vessel.
c)From [Ms Arnold’s] return to work on the Okha vessel on 30 August 2011, [Ms Arnold] experienced significant bullying and harassment by other workplace participants on the Okha vessel. The bullying and harassment included bullying about the introduction of the Diversity – Guideline and its connection with [Ms Arnold] making allegations about Addicoat’s conduct.
d)[Ms Arnold] submits that this bullying and harassment was a direct result of [Ms Arnold] making the allegations.
e)[Ms Arnold] suffered stress and anxiety and associated headaches, upset stomach and sleep deprivation as [a] result of the victimisation.
f)[Ms Arnold] reported the victimisation to Callum Hamilton (Woodside Health, Safety and Environment Coordinator) and Pete Davis (Prosafe Health, Safety and Environment Coordinator) and sought their assistance with these physical symptoms.
g)[Ms Arnold] also reported the victimisation to Harney, Smith and Donnan, on several occasions.
h)The victimisation continued to the point that it was untenable for [Ms Arnold] to continue employment on the Okha vessel.
i)Approximately September 2011, the number of single berth cabins made available to catering staff was reduced from four to two.
j)Approximately October 2011, [Ms Arnold] and [Ms Barrett] were removed from [Woodside’s] roster.
k)[Ms Arnold] advised Compass Group that she would not be returning to [Woodside’s] Okha vessel on 25 November 2011.
l)[Ms Arnold] then sought alternative employment with Compass Group. Her requests were denied or ignored.[49]
[49] Points of Claim, para.16.
Adequacy of pleadings and particulars
Both Compass Group and Woodside took issue with the adequacy of the pleadings and particulars provided by Ms Arnold.
On 22 July 2013 Compass Group’s lawyers wrote to Ms Arnold’s lawyers advising that the Points of Claim did not identify with sufficient particularity each matter of fact and law relied upon by Ms Arnold, asserted that Ms Arnold had not complied with the Order for Sufficient Particulars, and sought that Ms Arnold’s claim be properly particularised. In particular, Compass Group asserted that:
1.6For example, at paragraph 12 of the Applicant’s Claim it is alleged that our client directly discriminated against your client on the grounds of her sex by subjecting her to detriment. The detriment that is alleged by your client is that our client and Woodside allowed your client to be continuously subjected to bullying and harassment, including sexual harassment, in the course of her employment by Addicoat. The alleged conduct by Addicoat is set out in the particulars to paragraph 12, however:
(1)no date or dates are provided as to when the conduct was alleged to have occurred;
(2)the parties who were present when the alleged conduct occurred are not identified;
(3)the conduct is not identified with any degree of precision so as to enable our client to be able to provide any kind of response, for example, the conduct is described as “making derogatory comments about the quality of [Ms Arnold’s] work” and “making offensive comments about other workplace participants”.
1.7In addition, at paragraph 16 of the Applicant’s Claim your client alleges that she was subjected to detriment as a result of making the allegations against Addicoat. In the particulars to that allegation, your client alleges that:
(1)from her return to work on 30 August 2011, your client “experienced significant bullying and harassment by other workplace participants on the Okha vessel” but no particulars are provided of the alleged “significant bull[y]ing and harassment”; and
(2)the “bull[y]ing and harassment” was a “direct result of the Applicant making the allegations” but no particulars are provided as to the basis upon which it is alleged that the alleged “bullying and harassment” (which is not adequately particularised) was a “direct result” of your client making allegations.[50]
[50] Ms Smith’s Affidavit, annexure REJS-3.
Compass Group’s lawyers also asserted that paragraphs 12 and 16 of the Points of Claim were “completely inadequate”, and do not disclose a cause of action against …. [Compass Group]” and were therefore liable to be struck out. Notice of an intention to strike out was given additionally on the basis that the Sex Discrimination Claim was without the jurisdiction of the Court under s.46PO(3) of the AHRC Act. Compass Group’s lawyers noted that no allegation of sex discrimination was raised in the AHRC Complaint, and that the Substantive Application only listed as grounds sexual harassment and victimisation.[51]
[51] Ms Smith’s Affidavit, annexure REJS-3.
Compass Group’s lawyers indicated that they would refrain from taking action to strike out in relation to the matters identified until 26 July 2013.[52]
[52] Ms Smith’s Affidavit, annexure REJS-3.
On 31 July 2013 Compass Group’s lawyers again wrote to Ms Arnold’s lawyers noting that Ms Arnold’s lawyers had failed to provide a response to Compass Group’s lawyers’ letter of 22 July 2013, and had made “no discernable attempt to address the deficiencies” in pleading the subject of Compass Group’s lawyers’ letter of 22 July 2013.[53]
[53] Ms Smith’s Affidavit, annexure REJS-4.
The 31 July 2013 letter from Compass Group’s lawyers to Ms Arnold’s lawyers further asserted that:
a)Ms Arnold had failed to comply with her obligations, including the obligation to plead necessary particulars of each claim pursuant to r.16.41 of the Federal Court Rules 2011 (Cth);[54] and
b)was prepared to give a further extension to Ms Arnold until 2 August 2013 to comply with the matters the subject of the 22 July 2013 letter from Compass Group’s lawyers.[55]
[54] “FC Rules”.
[55] Ms Smith’s Affidavit, annexure REJS-4.
The 31 July 2013 letter from Compass Group’s lawyers to Ms Arnold’s lawyers also put Ms Arnold on notice that in view of the alleged failure of Ms Arnold to comply with the Order for Sufficient Particulars, responding to Compass Group’s lawyers letter of 22 July 2013, and to make any discernable attempt to address the deficiencies in the pleadings, that Compass Group may make application for the proceeding to be dismissed on the basis that Ms Arnold had failed to comply with the Order for Sufficient Particulars and prosecute the proceedings with due diligence. Further, the 31 July 2013 letter indicated that if Ms Arnold failed to file and serve a document complying with the Order for Sufficient Particulars by 2 August 2013 instructions would be sought to proceed with an application for summary judgment or to strike-out in full the application by Ms Arnold, and for costs.[56]
[56] Ms Smith’s Affidavit, annexure REJS-4.
Ms Arnold’s lawyers responded by letter dated 31 July 2013 in which they indicated that:
a)the Points of Claim were sufficiently particularised and that they did not intend to provide any further particulars, but noted that Compass Group could make an application under the FCC Rules to seek further and better particulars;
b)the particulars at paragraphs 12 and 16 of the Points of Claim sufficiently established a cause of action against Compass Group, and that it would be premature to bring a strike-out application at this stage; and
c)the Sex Discrimination Claim was within the jurisdiction of the Court because:
f)[Ms Arnold’s] original complaint to the AHRC was on grounds of sexual harassment however [Ms Arnold] has also included the complaint of sexual discrimination in the pleadings. … [Ms Arnold] is able to do so, … pursuant to section 46PO(3) of the AHRC Act as the conduct arises out of the substantially the same unlawful discrimination that was the subject of the terminated complaint.
g)… the complaint of ‘unlawful discrimination’ is defined by section 3 of the AHRC Act and includes any acts, omissions or practices that are unlawful under Part II of the Sex Discrimination Act 1984, this includes sexual discrimination in the workplace and further includes any conduct that is an offence under section 94 of the Sex Discrimination Act 1984, which concerns victimisation.[57]
[57] Ms Smith’s Affidavit, annexure REJS-5.
Compass Group’s lawyers replied on 2 August 2013 indicating their disagreement with the assertions contained in Ms Arnold’s lawyers’ letter of 31 July 2013 and reiterating their intention to file a strike-out application if Ms Arnold did not file and serve a document which complied with the Order for Sufficient Particulars.
On 22 July 2013 Woodside’s lawyers also wrote to Ms Arnold’s lawyers asserting that the Points of Claim lacked sufficient particularisation and did not comply with the Order for Sufficient Particulars, and adopted what was said in the 22 July 2013 letter from Compass Group’s lawyers.[58]
[58] Mr Paton’s Affidavit, annexure DJP1.
In their 22 July 2013 letter to Ms Arnold’s lawyers Woodside’s lawyers also identified what they said were further matters insufficiently particularised in the Points of Claim as follows:
With respect to the particulars in paragraph 9:
·Your client alleges that there is a “male-dominated” nature to the work environment without particularising how that claim is made;
·Your client claims that our client should have been “proactive” in addressing sexual harassment issues, without any particularisation of how our client could and should have been proactive; and
·Your client alleges that “appropriate policy and training was not implemented prior to the alleged sexual harassment occurring” without particularising what policy and training was appropriate, and how such policy or training should have been implemented.
With respect to the particulars in paragraph 16:
·Your client claims that she reported the alleged victimisation to Callum Hamilton and Pete Davis of our client, but does not particularise when or how this occurred; and
Your client also alleges that she reported the victimisation to Harney, Smith and Donnan of our client on “several occasions” without disclosing when or how this occurred.[59]
[59] Mr Paton’s Affidavit, annexure DJP1.
It was said that the above deficiencies in particulars rendered Ms Arnold’s claim liable to be struck out.[60]
[60] Mr Paton’s Affidavit, annexure DJP1.
Woodside’s letter of 22 July 2013 also indicated its agreement with the assertion by Compass Group’s lawyers that the Sex Discrimination Claim was without the jurisdiction of the Court.[61]
[61] Mr Paton’s Affidavit, annexure DJP1.
Woodside’s lawyers indicated that unless the alleged deficiencies were remedied by 26 July 2013 instructions would be sought to proceed with a strike-out application either in support of the strike-out application foreshadowed by Compass Group’s lawyers, or with a strike-out application by Woodside.[62]
[62] Mr Paton’s Affidavit, annexure DJP1.
By letter dated 30 July 2013 Woodside’s lawyers wrote to Ms Arnold’s lawyers noting that they had received no reply, and pointed out the obligations in relation to pleadings, and in particular r.16.41 of the FC Rules in relation to particulars. The 30 July 2013 letter from Woodside’s lawyers repeated the demands made in their letter of 22 July 2013 and indicated that if the deficiencies were not remedied by 2 August 2013 instructions would be sought to proceed with a strike-out application or an application for particulars.[63]
[63] Mr Paton’s Affidavit, annexure DJP2.
By letter dated 31 July 2013 Ms Arnold’s lawyers responded attaching a copy of their letter of the same date to Compass Group’s lawyers, and also further indicating that they believed that the Points of Claim were sufficiently particularised.[64]
[64] Mr Paton’s Affidavit, annexure DJP3.
The Application in a Case
In the Application in a Case Compass Group seeks orders that:
a)the Sex Discrimination Claim be struck out in full with respect to Compass Group on the basis that there is no jurisdiction to proceed with those allegations under s.46PO(3) of the AHRC Act;[65]
b)further or in the alternative to (a) above, that the Sex Discrimination Claim and the Victimisation Claim against Compass Group should be dismissed under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth)[66] and r.13.10 of the Federal Circuit Court Rules 2001 (Cth)[67] on the grounds that Ms Arnold has no reasonable prospect of successfully prosecuting the claim as the Points of Claim fail to disclose a cause of action against Compass Group;
c)further or in the alternative to (a) and (b) above, that the Substantive Application against Compass Group be dismissed as being insufficient in law arising from a lack of particularity in full or in part; and
d)further, or in the alternative to (a), (b) and (c) above, that the Substantive Application against Compass Group be dismissed under r.13.03B(1)(a) of the FCC Rules[68] on the basis that Ms Arnold has failed to comply with the Order for Sufficient Particulars and failed to prosecute the proceeding with due diligence; and
e)further, or in the alternative to (a), (b), (c) and (d) above, that Ms Arnold comply with the Order for Sufficient Particulars to “file and serve points of claim, with sufficient particularity of each matter of fact and law relied upon by the Applicant …” within 7 days.
Consideration of grounds of Application in a Case
[65] The orders sought by Compass Group, and its Submissions, refer to Ms Arnold not having jurisdiction. That should, obviously, and has been construed by the Court as being, a plea that the Court does not have jurisdiction.
[66] “FCCA Act”.
[67] “FCC Rules”.
[68] Both the orders sought in the Application in a Case and Compass Group’s Submissions erroneously refer to “rule 13.1B” of the FCC Rules.
Striking out of Sex Discrimination Claim
Section 46PO(3) of the AHRC Act
Section 46PO(3) of the AHRC Act provides as follows:
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.
Compass Group’s submissions
Compass Group submits that the Sex Discrimination Claim should be struck out under s.46PO(3) of the AHRC Act. Compass Group says that the relevant principles in determining this issue are as follows:[69]
a)whether the AHRC Complaint is in “… the shape which it had assumed at the time of its termination” by the AHRC;[70]
b)that an alleged incident falls within s.46PO(3) of the AHRC Act where it is “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance”;[71]
c)an applicant is permitted to allege “different facts … provided, however, that the facts now alleged are not different in substance from the facts formerly being alleged”;[72]
d)in light of the flexibility permitted by s.46PO(3)of the AHRC Act, its application “should not be read with the same strictures as apply to a pleading in a court”;[73] and
e)there is a balance to be achieved between “a degree of flexibility”, as suggested by s.46PO(3) of the AHRC Act, and the important “constraint” in raising a complaint before the Court not raised before the AHRC.[74]
[69] Desouza v Secom Australia Pty Limited [2013] FCCA 659 at para.46 per Judge Nicholls, referring to Dye v Commonwealth Securities Ltd (No. 2) [2010] FCAFC 118 at paras.46-53 per Marshall, Rares and Flick JJ (“Dye (No. 2)”).
[70] Travers v New South Wales [2000] FCA 1565 at para.8 per Lehane J (“Travers”); see also Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission & Anor (1996) 69 FCR 90 at 94 per Merkel J.
[71] Dye (No. 2) at para.50 per Marshall, Rares and Flick JJ.
[72] Charles v Fuji Xerox Australia Pty Ltd(2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para.39 per Katz J (“Fuji Xerox”).
[73] Dye (No. 2) at para.48 per Marshall, Rares and Flick JJ.
[74] Travers at para.8 per Lehane J; see also Dye (No. 2) at para.46 per Marshall, Rares and Flick JJ.
Taking the above principles into account, Compass Group submits that the Court should determine that the Court does not have jurisdiction to proceed with the Sex Discrimination Claim against Compass Group under s.46PO(3) of the AHRC Act as:
a)the AHRC Complaint, at the time of its termination:
i)was limited to allegations in relation to sexual harassment and victimisation; and
ii)did not purport to make, against Compass Group, any allegations of sex discrimination;
b)the Sex Discrimination Claim does not fall within s.46PO(3) of the AHRC Act as it is not capable of being characterised as an act that arose out of the same unlawful discrimination of which Ms Arnold complained, or which was of the same substance, nor does it arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint as:
i)there was never any suggestion in the AHRC Complaint that Ms Arnold was ever discriminated against on the basis of her sex by Compass Group, which is evidenced by the fact that the AHRC Complaint does not include any particulars of discrimination;
ii)no allegations were made, nor were any facts pleaded in the AHRC Complaint as to any:
(A)less favourable treatment of Ms Arnold by Compass Group on the grounds of Ms Arnold’s sex; or
(B)detriment imposed on Ms Arnold by Compass Group on the grounds of Ms Arnold’s sex;
iii)the allegations that were made in the AHRC Complaint at paragraphs 11 and 12 were made in support of the allegation that Ms Arnold was “sexually harassed and bullied” by Mr Addicoat; and
iv)there was no allegation, nor were any facts provided, that there was any causal nexus between an action taken by Compass Group and Ms Arnold’s sex;
c)the new allegations of “detriment” at paragraph 12 of the Points of Claim are different in substance from the facts formerly alleged in the AHRC Complaint as there was never an indication in the AHRC Complaint that Compass Group imposed a detriment on Ms Arnold because of Ms Arnold’s sex;
d)whilst it is established that in light of the flexibility permitted by s.46PO(3) of the AHRC Act, the application of the section “should not be read with the same strictures as apply to a pleading in a court”[75], the Court should take into account that:
i)Ms Arnold had legal advice at the time of the AHRC Application and her lawyers prepared the AHRC Application, the Substantive Application and the Points of Claim. It should, therefore, be taken that those documents were prepared with care and list each alleged act, omission or practice said to give rise to the unlawful discrimination;[76] and
ii)even at the time of making the Substantive Application, the Applicant only listed “Sexual Harassment” and “Victimisation” as the grounds of the complaint, and only referred to ss.28A-28L and s.94 of the SD Act, and did not refer to any allegations in relation to unlawful discrimination in employment on the grounds of sex; and
e)the balance to be achieved should be exercised in favour of Compass Group:
i)for the reasons set out above;
ii)because Ms Arnold’s lawyers originally made a conscious decision not to pursue the Sex Discrimination Claim as that claim did not and does not arise out of the original facts; and
iii)because Ms Arnold has attempted to transform the allegations that Mr Addicoat bullied her into a Sex Discrimination Claim against Compass Group.
[75] Dye (No. 2) at para.48 per Marshall, Rares and Flick JJ.
[76] Philip v State of New South Wales [2011] FMCA 308 at para.61 per Lloyd-Jones FM.
Woodside’s submissions
Woodside adopted the submissions of Compass Group.
Ms Arnold’s submissions
Ms Arnold submits that:
a)the Sex Discrimination Claim is a cause of action arising from the same facts that were the subject of the AHRC Complaint;
b)in including the Sex Discrimination Claim Ms Arnold relies on s.46PO(3) of the AHRC Act which she asserts permits her to include the Sex Discrimination Claim in the Substantive Application on the basis that whilst the facts bear a different legal character from what was in the AHRC Complaint, the Sex Discrimination Claim is no different in substance from the legal character of the AHRC Complaint;
c)“unlawful” is defined in s.3 of the AHRC Act and includes any act, omissions, or practices that are unlawful under Part II of the SD Act, which includes sex discrimination;
d)the claim that Ms Arnold ought not be permitted to proceed with the Sex Discrimination Claim because the AHRC Complaint and the Substantive Application to this Court were drafted by a legal representative is misconceived; and
e)the commentary in the authorities referred to by Compass Group, and upon which it relies, were made in the context of considering the principles of fairness and natural justice, which is different from considering the question of the Court’s jurisdiction to include additional claims of a similar legal character borne out of the same set of facts.
Consideration
In Fuji Xerox the Federal Court dealt with the provisions of s.46PO(3) of the AHRC Act[77] and in particular the legal characterisation of the allegations of fact made or sought to be made. The Federal Court observed that:
In the two situations with which … [s.46PO(3) of the AHRC Act] deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.[78]
[77] Then the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Court will refer to it as the AHRC Act.
[78] Fuji Xerox FCR at 580 per Katz J; FCA at para.37 per Katz J.
Of s.46PO(3)(a) of the AHRC Act the Federal Court in Fuji Xerox said that it proceeded on the basis that the allegations of fact being made before the Court were the same as those made in the complaint terminated by the AHRC, and went on to observe that:
However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.[79]
… on the other hand, [it] permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.[80]
It appears to me that …. [s.46PO(3)(a)] was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work …[81]
… it is apparent that … [s.46PO(3)(a)] … provides no warrant for an applicant in the proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. … [s.46PO(3)(b)] … does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission.[82]
[79] Fuji Xerox FCR at 580 per Katz J; FCA at para.38 per Katz J.
[80] Fuji Xerox FCR at 580-581 per Katz J; FCA at para.39 per Katz J
[81] Fuji Xerox FCR at 581 per Katz J; FCA at para.40 per Katz J.
[82] Fuji Xerox FCR at 581 per Katz J; FCA at para.41 per Katz J.
In Dye (No. 2) the Full Court of the Federal Court made the following general observations with respect to s.46PO(3) of the AHRC Act:
46 Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B . Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F -G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39] .
48 The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:
“Court not bound by technicalities
46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”
The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.[83]
[83] Dye (No. 2) at paras.46-48 per Marshall, Rares and Flick JJ.
In Dye (No. 2) the Full Court of the Federal Court held that an additional allegation of sexual assault, not previously made in respect of the complaint terminated by the AHRC, was an act that arose out of the same unlawful discrimination about which complaint had been made, or was of the same substance, in circumstances where the complaint to the AHRC had complained of the applicant being subject to a course of sexual harassment in a variety of forms over a period of months, and the new incident fell, in time, between two other alleged incidents of sexual harassment which were 13 days apart.[84] The Full Court of the Federal Court held that the scope of the complaint to the AHRC was sufficiently wide to prevent summary exclusion of the additional factual allegation at an interlocutory stage, but observed that:
There may well be cases where at an interlocutory stage it is clear that an allegation could not be made in an application under s 46PO(3) because it fell outside any issue reasonably justiciable in respect of a complaint terminated by the Commission.[85]
[84] Dye (No. 2) at para.50 per Marshall, Rares and Flick JJ.
[85] Dye (No. 2) at para.52 per Marshall, Rares and Flick JJ.
The issue of whether a matter the subject of a complaint to the AHRC alleging sexual harassment can, on a subsequent application to a federal court following the termination of conciliation before the AHRC, be brought to include a claim of sex discrimination has been extensively dealt with in Hall & Ors v A & A Sheiban Pty Ltd & Ors,[86] Elliott v Nanda & Anor[87] and Wattle v Kirkland & Anor (No. 2).[88]
[86] (1988) 20 FCR 217 (“Hall”).
[87] (2001) 111 FCR 240; [2001] FCA 418 (“Elliott”).
[88] [2002] FMCA 135 (“Wattle (No. 2)”).
In Elliott the applicant sought at the commencement of the hearing to amend the application by seeking a declaration that the respondent had discriminated against the applicant in her employment on the basis of sex.[89] The issue arose in circumstances where the original complaint was found by the then Human Rights and Equal Opportunity Commission to relate to incidents which would constitute sexual harassment and sex discrimination, but because of findings that were made it was unnecessary to consider whether or not the relevant incidents constituted sex discrimination.[90]
[89] Elliott FCR at 274 per Moore J; FCA at paras.100-101 per Moore J.
[90] Elliott FCR at 274-275 per Moore J; FCA at para.102 per Moore J.
For present purposes it suffices to observe that in Elliott the Federal Court adopted the reasoning of Justice French (as he then was) in Hall, which was summarised in Elliott as follows:
121 French J considered the question at length. After observing that one of the stated objects of the S D Act (s 3(a)) is to give effect to the Convention On The Elimination Of All Forms Of Discrimination Against Women 1979 done at New York on 18 December 1979, which contains a broad definition of discrimination, his Honour noted (at 274-275):
“[The Act] states one of its objects to be ‘to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace and in educational institutions’: s 3(c). That object is pursued in Div 3, Pt II, which is headed ‘Discrimination Involving Sexual Harassment’, a context which led Spender J to conclude, rightly in my respectful opinion, that sexual harassment is a form of discrimination under the Act: Aldridge v Booth (1988) 80 ALR 1 at 16.”
122 French J then considered a number of American, Canadian and English authorities which support the view that sexual harassment is a species of sex discrimination. His Honour continued (at 276):
“There is nothing in the concept of discrimination in s 4 of the [S D Act] to suggest that it should not extend to sexual harassment in the work place in the same way that it has been extended by the American and British courts.”
123 French J then referred to the conclusion of Mathews J (in her Honour's capacity as a judicial member of the NSW Equal Opportunity Tribunal) in O'Callaghan v Loder that sexual harassment could constitute sex discrimination under s 25 of the Anti-Discrimination Act 1977 (NSW). His Honour commented (at 277):
“This exposition does not embody any distinct requirement that there be a discriminatory element in the employer's behaviour. That is implicit in the very nature of sexual harassment. The implication is also to be found in the concept of sexual harassment covered by s 28. That section puts beyond doubt that sexual harassment in employment is a species of unlawful sex discrimination. The requirements of s 14 relating to discriminatory treatment in the terms and conditions of employment or subjection to detriment are subsumed in the nature of the prohibited conduct … ”[91]
[91] Elliott FCR at 280 per Moore J; FCA at paras.121-123 per Moore J.
In Elliott, the Federal Court went on to observe that:
I respectfully agree with the statement of French J in Hall v A & A Sheiban Pty Ltd and of Spender J in Aldridge v Booth that s 14 is capable of extending to conduct that constitutes sexual harassment under Div 3 of Pt II. In my opinion, such a principle is consistent with the purpose and scheme of the S D Act and also with the overseas jurisprudence set out in Hall v A & A Sheiban Pty Ltd and O'Callaghan v Loder on the nature and scope of “sex discrimination”.[92]
[92] Elliott FCR at 281 per Moore J; FCA at para.127 per Moore J.
Woodside’s submissions
Woodside adopted the submissions of Compass Group.
Ms Arnold’s submissions
Ms Arnold denies there has been any failure to comply with the Order for Sufficient Particulars or to prosecute the proceedings with due diligence.
Consideration
Ms Arnold did attempt to comply with the Order for Sufficient Particulars, and although the Court has ordered that the Sex Discrimination Claim and Victimisation Claim both be struck out, and has been critical of the lack of particularisation of the Sex Discrimination Claim and the Victimisation Claim, they have been struck out with leave to re-plead for the reasons given above.[132] The Court further observes that there is on foot a Sexual Harassment Claim which remains unimpeached. In those circumstances, it is not appropriate to dismiss the matter at this stage for failure to comply with a first order that Points of Claim be filed with sufficient particularity. Furthermore, the assertion that Ms Arnold did not prosecute her claim with due diligence has no real foundation. There was a rejection of the need for further particularisation in Ms Arnold’s lawyers’ letter dated 31 July 2013, and this application was, after a further letter to Ms Arnold’s lawyers dated 2 August 2013, made on 13 August 2013. In all of the circumstances, an assertion of a failure to prosecute the claim with due diligence simply cannot be made out in light of both the response and the above timeframe.
Order for compliance with Order for Sufficient Particulars
[132] See paras.100 and 104 above.
Compass Group’s submissions
Compass Group also submits that Ms Arnold has not complied with the Order for Sufficient Particulars, and that the Court should make an order requiring Ms Arnold to comply with the Order for Sufficient Particulars to “file and serve points of claim, with sufficient particularity of each matter of fact and law relied upon by the applicant…” within 7 days.
Woodside’s submissions
Woodside adopted the submissions of Compass Group.
Ms Arnold’s submissions
Ms Arnold denies there has been any failure to comply with the Order for Sufficient Particulars.
Consideration
The Court repeats the observations made at paragraph 112 above, and notes that any re-pleading should be on similar terms with respect to particularity as provided for in the Order for Sufficient Particulars.
Conclusions and orders
The Court has concluded that:
a)the Sex Discrimination Claim is within the jurisdiction of the Court to hear by reason of s.46PO(3)(b) of the AHRC Act, and that the Court can exercise its power arising from its jurisdiction to hear the Sex Discrimination Claim;
b)the Sex Discrimination Claim and the Victimisation Claim have no reasonable prospect of success as presently pleaded, and ought therefore to be struck out, with leave to re-plead, with any re-pleading to include sufficient particulars of the matters of fact and law relied upon by Ms Arnold; and
c)the claims for dismissal by reason of lack of particularity, and for orders for compliance with the Order for Sufficient Particulars, need not be dealt with having regard to the Court’s conclusions with respect to the Sex Discrimination Claim and the Victimisation Claim.
It follows that there ought to be orders as follows:
a)pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth):
i)paragraphs 11, 12, 13, 15 and 16; and
ii)the following words:
1) “sexual discrimination and victimisation” in paragraph 5; and
2) “and sexual discrimination” in paragraph 14,
of the Applicants Points of Claim filed 16 July 2013 be struck out, but otherwise the First Respondent’s Application in a Case filed 13 August 2013 be dismissed; and
b)the Applicant have leave to file and serve an Amended Points of Claim, including sufficient particulars of each matter of fact and law relied upon by the Applicant, by 7 November 2014.
Given that there have been varying degrees of success and failure in relation to the Application in a Case it is appropriate that the parties consider their respective positions concerning costs, and if any costs of the Application in a Case are sought that an Application in a Case be filed and served, by 7 November 2014, and there will be an order accordingly.
There will also be an order for the matter to be listed for further directions at 9.30am on 18 November 2014.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 10 October 2014
- AGLC
- Arnold v Compass Group (Australia) Pty Ltd [2014] FCCA 1999
- Case
- [2014] FCCA 1999
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. These included whether it had jurisdiction to hear the sex discrimination claim, given that it was not explicitly raised in the initial complaint to the Australian Human Rights Commission (AHRC). The court also had to consider whether the sex discrimination and victimisation claims should be dismissed or struck out due to a lack of reasonable prospect of success or insufficient particularity in the pleadings. Finally, the court needed to decide whether to make alternative orders for the applicant to provide points of claim with sufficient particularity.
Judge Lucev reasoned that while the sex discrimination claim was not explicitly made in the AHRC complaint, it arose out of the same underlying acts and omissions as the sexual harassment and victimisation claims. Applying section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth), the court found that it had jurisdiction to hear the sex discrimination claim, as the facts alleged were substantially the same as those previously considered. However, the court found that certain paragraphs and phrases within the applicant's Points of Claim lacked sufficient particularity and were ordered to be struck out.
Consequently, the court ordered that specific paragraphs and phrases within the applicant's Points of Claim be struck out. The first respondent's application to dismiss the substantive application was otherwise dismissed. The applicant was granted leave to file and serve amended Points of Claim with sufficient particulars by a specified date. The court also made directions regarding any applications for costs and listed the matter for a further directions hearing.
Orders
Orders of the court
1.
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth):
(a) paragraphs 11, 12, 13, 15 and 16; and
(b) the words:
(i) “sexual discrimination and victimisation” in paragraph 5; and
(ii) “and sexual discrimination” in paragraph 14,
of the Applicants Points of Claim filed 16 July 2013 be struck out, but otherwise the First Respondent’s Application in a Case filed 13 August 2013 be dismissed.
2.
The Applicant have leave to file and serve an Amended Points of Claim, including sufficient particulars of each matter of fact and law relied upon by the Applicant, by 7 November 2014.
3.
Any Application in a Case for costs in relation to the First Respondent’s Application in a Case filed 13 August 2013 be filed and served by 7 November 2014.
4.
The matter be listed for a further directions hearing at 9.30am on 18 November 2014.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH
PEG 98 of 2013
CHARLOTTE ARNOLD
Applicant
And
COMPASS GROUP (AUSTRALIA) PTY LTD
First Respondent
WOODSIDE ENERGY LTD
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.
The first respondent, Compass Group (Australia) Pty Ltd[1] has filed an Application in a Case dated 13 August 2013 seeking various orders in relation to the applicant’s, Charlotte Arnold’s,[2] substantive Application to the Court filed 10 May 2013 and Points of Claim filed on 16 July 2013.[3] The Substantive Application and Points of Claim, read together, allege that Ms Arnold was sexually harassed, sexually discriminated against and victimised by Compass Group and the second respondent, Woodside Energy Ltd,[4] whilst employed by Compass Group and working on a Woodside vessel.
2.
The orders sought in the Application in a Case essentially seek to have the Substantive Application dismissed, struck out or further particularised, either in whole or part, and the submissions in support of and in opposition to those orders are set out and considered below. Before setting out the details of the Application in a Case it is convenient to set out some preliminary matters, including the evidence relied on by the parties, and the background to, and detail of, the Substantive Application and Points of Claim.
Evidence
3.
Compass Group relied on the affidavit of Rachael Ellen Jacqueline Smith (a lawyer with Compass Group’s lawyers) sworn 13 August 2013[5] in support of the Application in a Case.
4.
Ms Smith’s Affidavit:
a) annexes Ms Arnold’s complaint filed in the Australian Human Rights Commission[6] on 23 November 2011[7] alleging that she had been sexually harassed and victimised contrary to the Sex Discrimination Act 1984 (Cth);[8]
b) annexes a Notice of Termination dated 18 March 2013[9] from a delegate of the President of the AHRC indicating that the AHRC Complaint had been terminated under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth)[10] because the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation; and
c) summarises the content of annexures, being an exchange of correspondence between Compass Group’s lawyers and Ms Arnold’s lawyers concerning the adequacy of pleadings and particulars.
5.
Woodside relied upon the affidavit of David John Paton (a lawyer with Woodside’s lawyers) affirmed 2 September 2013.[11] Mr Paton’s Affidavit annexes an exchange of correspondence between Woodside’s lawyers and Ms Arnold’s lawyers concerning the adequacy of pleadings and particulars.
6.
Summaries of the contents of the annexures in relation to the adequacy of the pleadings and particulars are set out below.[12]
AHRC Complaint
7.
The AHRC Complaint was prepared with the assistance of Ms Arnold’s lawyers, and her lawyers’ address is given as her address.[13]
8.
The AHRC Complaint complains about Compass Group and Woodside, the former in its capacity as Ms Arnold’s employer and the latter in its capacity as a person for whom Ms Arnold says that she worked on a Woodside vessel, under a contract between Woodside and Compass Group.[14]
9.
The AHRC Complaint contains a section entitled “Why are you complaining to the Commission?” This is a tick or cross a box section where the applicant says “I am complaining because I believe”. It then sets out a choice of matters which may be ticked or crossed with respect to why an applicant believes they are complaining. The first box, which Ms Arnold neither ticked nor crossed says “I have been discriminated against because of my sex”.[15] The second box which Ms Arnold has been crossed says “I have been sexually harassed”.[16] There are then a number of other heads of discrimination, namely, race, disability, age, breach of human rights by a federal government agency and discrimination in employment by reason of matters other than sex which are not ticked or crossed by Ms Arnold. The final box is crossed by Ms Arnold: that box reads “I have been treated unfairly for another reason”. The AHRC Complaint then provides for the reason to be stated, and Ms Arnold says as follows:
I was victimised (within the meaning of s 94 of the Sex Discrimination Act 1984 (Cth) (“the Act”)) because I made an allegation that a person (ie a workplace participant who was an employee of the Principal Woodside) has done an act that is unlawful by reason of the provision of Part II of the Act (ie sexual harassment).[17]
10.
The AHRC Complaint then asks “When did this happen?” Ms Arnold has indicated “Approximately July 2010 to 25 November 2011”.[18]
11.
The AHRC Complaint then asks an applicant to describe “What happened?” Ms Arnold provides the following details:
a) under the heading “Employment details” details of her employment with Compass Group from in or about June 2010 providing catering services to Woodside staff on board the vessel “Cossack Pioneer”, and her transfer in March 2011 to the vessel “Okha” where she provided the same services prior to her resignation on 25 November 2011;[19]
b) under the heading “Sexual harassment” details of alleged bullying and sexual harassment by Luke Mr Addicoat,[20] a Woodside employee,[21] the latter being:
a) making sexist and derogatory comments about women to … [Ms Arnold]; and
b) making derogatory comments about … [Ms Arnold’s] supervisor’s lesbian sexuality to … [Ms Arnold] and stating that the supervisor’s sexuality gave … [Ms Arnold] an advantage at work because she was a woman.[22]
c) Ms Arnold then alleges that on a specific day, 13 August 2011, while at work on the vessel “Okha” Mr Addicoat said to her the following:
Women should be at home having babies, cooking, cleaning and ironing creases in their husband’s jeans.
Don’t you know women means kitchen spelt backwards?[23]
Ms Arnold said that Mr Addicoat’s conduct was unwelcome and made her feel offended, humiliated and intimidated.[24]
12.
Under the heading “Allegation of sexual harassment by Luke Addicoat” Ms Arnold then sets out a process whereby she informed her supervisor about what had allegedly occurred, and the incident was then reported to more senior managers, one of whom advised that he would inform a manager with Woodside. Ms Arnold says that the following day another employee alleged and reported similar conduct by Mr Addicoat to the manager with Woodside who had been informed of Ms Arnold’s complaint by managers of Compass Group. The day after that, Ms Arnold and the other employee jointly submitted a report concerning Mr Addicoat’s alleged bullying in the workplace to the Woodside manager concerned. Ms Arnold says that that report included allegations of conduct of a sexual nature that was unwelcome and which made her feel offended, humiliated and intimidated.[25]
13.
Under the heading “Response to the allegation by … [Compass Group and Woodside]” Ms Arnold alleges she and Portia Barrett[26] were interviewed by officers of Compass Group and Woodside jointly, following which she returned to work, notwithstanding that she had expressed concerned that she would be victimised because she had made the allegations.[27] Ms Arnold asserts that Compass Group and Woodside “failed to adequately address the sexual harassment by Luke Addicoat and failed to ensure that … [Ms Arnold] would not be subjected to victimisation as a result of making the allegations.”[28]
14.
Under the heading “Victimisation as a result of making an allegation” Ms Arnold alleges that upon her return to work on the vessel “Okha” on or about 30 August 2011 she “experienced significant bullying and harassment by other workplace participants … including but not limited to the number of single berth cabins available to catering staff being reduced.”[29] Ms Arnold submits that the bullying and harassment was a direct result of her making the allegations set out above, and that she suffered various ailments as a consequence of the victimisation which she had reported to various more senior personnel on the vessel “Okha” on several occasions.[30]
15.
Ms Arnold alleges that the victimisation continued to the point where she felt that it was untenable for her to continue in her employment on the vessel “Okha” and she resigned from her employment with Compass Group on 25 November 2011.[31]
16.
Under the heading “How has this affected you?” and in response to the request to “Please tell us how what you are complaining about has affected you” Ms Arnold alleges that:
1. As a result of making the allegations of sexual harassment … [Ms Arnold] suffered intensive and sustained bullying and harassment by workplace participants.
2. As a result of the victimisation she suffered, … [Ms Arnold] was forced to resign.
3. Following her resignation, … [Ms Arnold] sought alternative employment with … [Compass Group]. These requests were denied or ignored.
4. Despite her efforts, … [Ms Arnold] has been unable to secure comparable employment.
5. [Ms Arnold] has endured pain and suffering, hurt and humiliation.
6. [Ms Arnold] has experienced stress and anxiety and has borne the cost of medical treatment for such.[32]
17.
Attached to the AHRC Complaint as attachment 1 is a document headed “Luke Addicoat bullying in the workplace – OKHA” prepared by Ms Arnold and Ms Barrett.[33] What follows is a general complaint about various aspects of Mr Addicoat’s alleged behaviour in the workplace. The tenor of the attachment is to complain about behaviour considered to be bullying, harassment and intimidation by Mr Addicoat and in relation to which it is alleged that he makes “sexist remarks” to women. What are then said to be examples of Mr Addicoat’s alleged “harassing comments and behaviour” are given. The alleged comments include:
- Women should be at home not offshore.
- Women do not belong out here.
- Portia should be at home having babies instead of being out here.
- Women means kitchen spelt backwards.
- ‘Fat Baron Lesbian Cunt’ is the words he uses in describing or referring to the Chief Caterer.
- The first time we met Luke he called her this, along with stories in an attempt to influence us into fearing and disliking the Chief Caterer. He still refers to her using all, or a combination of these words.
- ‘Hey woman cook me some eggs’. Portia asked him not to talk to me like that…. He then gleefully repeated it in front of other crew members, and again he was told to stop the remarks as it was offensive and disrespectful.
- Portia is sweet talking the Chief Cook so as to obtain work onboard the Cossack.
- …
- Refers to one of our supervisors as ‘alpha male’, ‘she who must be obeyed’ and constantly making rude remarks about her sexuality.
- …
- He has said that a female supervisor is trying to sleep with female caterers and that is the only reason they have jobs here.
- Girls use their woman magic to get what they want. They shake their arses at the female Chief Caterer.
- ….[34]
AHRC Notice of Termination
18.
The AHRC Notice of Termination provides as follows:
This complaint alleging unlawful discrimination under the Sex Discrimination Act 1984 (Cth) has been terminated under section 46PH(1)(i) of the … [AHRC Act] on the ground that I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.
Reasons for this decision are provided in Attachment A.[35]
19.
A copy of the reasons for decision[36] referred to in the AHRC Notice of Termination is not before the Court.
Substantive Application
20.
On 10 May 2013, the Substantive Application was filed with this Court alleging “unlawful discrimination” under s.46PO(1) of the AHRC Act. The Substantive Application is signed by a lawyer for Ms Arnold.
21.
In the Substantive Application Ms Arnold makes claims in relation to sexual harassment and victimisation. Ms Arnold:
a) alleges that the discrimination complained of is said to be “Sexual Harassment” and “Victimisation”, and to be “As detailed in the original complaint to Australian Human Rights Commission – attached.”;[37] and
b) asked to state the relevant sections of “the Act” relevant to the claim, Ms Arnold has specified ss.28A-28L and 94 of the SD Act.[38]
22.
On 18 June 2013, at the first hearing date for the Substantive Application, the Court made orders including an order that the Applicant was required to:
… file and serve points of claim, with sufficient particularity of each matter of fact and law relied upon by the applicant…[39]
Points of Claim
23.
In the Points of Claim Ms Arnold alleges that:
a) she commenced employment with Compass Group as a caterer in June 2010 on the vessel “Cossack Pioneer”, and was transferred to the vessel “Okha” on or about 28 March 2011, both vessels being owned or operated by Woodside as the “principal” as defined in s.4(1) of the SD Act, with Compass Group contracted to provide additional catering staff to support catering staff employed directly by Woodside;[40]
b) Mr Addicoat was an employee of Woodside who worked on the Cossack Pioneer and Okha vessels as a caterer (until 6 July 2010) and then a trainee production operator, and was a “workplace participant” as defined in s.28B(7) of the SD Act, and was so employed until on or about 17 August 2011 when he ceased to work on the same vessel as Ms Arnold;[41]
c) whilst employed by Compass Group and Woodside, Ms Arnold was subject to:
i) sexual harassment;
ii) sexual discrimination; and
iii) victimisation;[42]
d) Mr Addicoat sexually harassed Ms Arnold by engaging in unwelcome conduct of a sexual nature that a reasonable person would have anticipated would make her feel offended, humiliated and intimidated, and provides the following particulars:
PARTICULARS
a) leering at [Ms Arnold] or physically standing over [Ms Arnold] while she was working;
b) making sexist and derogatory comments about women to [Ms Arnold], including saying to [Ms Arnold], on or about 13 August 2011, the following words to the effect of: ‘Women should be at home having babies, cooking, cleaning and ironing creases in their husbands’ jeans’; and ‘Don’t you know ‘women’ means kitchen spelt backwards?”; and
c) making derogatory comments about the sexuality of [Ms Arnold’s] supervisor, Julie Donnan (‘Donnan’), Chief Caterer of [Woodside], to [Ms Arnold] and stating that the supervisor’s sexuality gave [Ms Arnold] an advantage at work because she was a woman.[43]
e) Woodside failed to take all reasonable steps to prevent Mr Addicoat from sexually harassing Ms Arnold, and provided particulars as follows:
PARTICULARS
a) The male-dominated nature of the work environment and the gendered division of labour (with female employees concentrated in catering work) was such that [Woodside] should have been proactive in addressing sexual harassment issues.
b) Appropriate policy and training was not properly implemented prior to the sexual harassment occurring. A Diversity – Guideline document was introduced to explain why [Woodside’]s Diversity Policy was important after [Ms Arnold] made allegations about Addicoat’s conduct …
c) The size of [Woodside] is such that it should have had the resources and sophistication to address these issues.[44]
f) under s.106 of the SD Act Woodside was vicariously liable for the sexual harassment of Ms Arnold by Mr Addicoat;[45]
g) Compass Group and Woodside sexually discriminated against Ms Arnold in her employment under ss.5 and 14(2)(d) of the SD Act, directly by subjecting her to a detriment which was suffered as a result of allowing Ms Arnold to be continuously subjected to bullying and harassment, including sexual harassment, by Mr Addicoat in the course of Ms Arnold’s employment. The conduct was particularised as follows:
PARTICULARS
a) making derogatory comments about the quality of [Ms Arnold’s] work such that [Ms Arnold] and other workplace participants could hear him;
b) complaining about the presence of contract workers on the vessels such that [Ms Arnold] and other workplace participants could hear him;
c) making offensive comments about other workplace participants to [Ms Arnold] and pressuring [Ms Arnold] to join in; and
d) the conduct described in paragraph 7 above.[46]
h) Ms Arnold alerted Compass Group and Woodside to the sexual harassment and sexual discrimination, as follows:
PARTICULARS
a) Immediately following the incident on or about 13 August 2011, [Ms Arnold] informed her supervisor, Glenn Evans (Chief Caterer employed by the [Woodside]), of what had occurred.
b) [Ms Arnold] reported the incident to Katrina Madden (‘Madden’), Recruitment and Logistics of [Compass Group], and Shane Byrne (‘Byrne’), Area Manager of [Compass Group].
c) On or about 14 August 2011, [Ms Arnold] spoke with Smith[47] regarding the incident.
d) On or about 15 August 2011, [Ms Arnold] and [Ms Barrett], another Caterer and workplace participant, jointly submitted a report to Smith.
e) On or about 23 August 2011, [Ms Arnold] met with Helen Seiler (‘Seiler’), Human Resources of [Compass Group] and Dee Bignell (‘Bignell’), Human Resources of [Woodside], and …[provided] them with further detail of the allegations.
f) During his meeting [Ms Arnold] informed Seiler and Bignell that she:
(i) was concerned that on return to work she would be victimised by other workplace participants for making an allegation about Addicoat to management; and
(ii) wanted … Addicoat to apologise and be counselled for his behaviour; and
(iii) wanted all workplace participants to receive training in acceptable workplace behaviour.
g) [Ms Barrett], on behalf of herself and [Ms Arnold], gave Bignell a list of workplace participants that they were concerned would participate in the victimisation;
h) [Ms Arnold] received no further contact from the [Woodside] about the allegations and investigation.
i) On or about 26 August 2011 and 29 August 2011, [Ms Arnold] informed Byrne and Seiler that she was nervous and anxious about returning to the vessel from scheduled leave and concerned that the other workplace participants would victimise her because she made the allegations.
j) On or about 30 August 2011, [Ms Arnold] returned to work on the Okha vessel. She reported to Lyndsay Harney (‘Harney’), OIM of [Woodside], and expressed her concerns that she would be victimised because she had made the allegations.
k) On or about 7 September 2011 [Ms Arnold] emailed Seiler and again stated her concern about the conduct of Addicoat and the effect on her.
l) On or about 12 September 2011, Seiler emailed [Ms Arnold] and [Ms Barrett] to provide an update on the investigation into their allegations, noting that she had touched base with Bignell and [Woodside] was still investigating. Seiler states: ‘I did indicate that [Ms Arnold] has been out there on her own and now [Ms Barrett] will be also, not the ideal situation to be put in with this unresolved’.
m) On or about 13 September 2011, Byrne emailed [Ms Arnold] to advise that Addicoat had been moved to another vessel. [Ms Arnold] received no further contact from [Compass Group] about the allegations and investigation.
n) On or about 25 November 2011, [Ms Arnold] emailed Byrne, Madden and Seiler to advise them that she would not be returning to the Okha vessel as a direct result of the bullying and harassment [Ms Arnold] had suffered.[48]
i) she was the subject of victimisation contrary to s.94 of the SD Act by being subject to detriment as a result of making allegations against Mr Addicoat, as follows:
PARTICULARS
a) [Ms Arnold] notified [Compass Group and Woodside] of her concerns that she would be victimised by other workplace participants as a result of her making allegations against Addicoat: …
b) Late August 2011, [Woodside] introduced a Diversity – Guildeline document on the Okha vessel.
c) From [Ms Arnold’s] return to work on the Okha vessel on 30 August 2011, [Ms Arnold] experienced significant bullying and harassment by other workplace participants on the Okha vessel. The bullying and harassment included bullying about the introduction of the Diversity – Guideline and its connection with [Ms Arnold] making allegations about Addicoat’s conduct.
d) [Ms Arnold] submits that this bullying and harassment was a direct result of [Ms Arnold] making the allegations.
e) [Ms Arnold] suffered stress and anxiety and associated headaches, upset stomach and sleep deprivation as [a] result of the victimisation.
f) [Ms Arnold] reported the victimisation to Callum Hamilton (Woodside Health, Safety and Environment Coordinator) and Pete Davis (Prosafe Health, Safety and Environment Coordinator) and sought their assistance with these physical symptoms.
g) [Ms Arnold] also reported the victimisation to Harney, Smith and Donnan, on several occasions.
h) The victimisation continued to the point that it was untenable for [Ms Arnold] to continue employment on the Okha vessel.
i) Approximately September 2011, the number of single berth cabins made available to catering staff was reduced from four to two.
j) Approximately October 2011, [Ms Arnold] and [Ms Barrett] were removed from [Woodside’s] roster.
k) [Ms Arnold] advised Compass Group that she would not be returning to [Woodside’s] Okha vessel on 25 November 2011.
l) [Ms Arnold] then sought alternative employment with Compass Group. Her requests were denied or ignored.[49]
Adequacy of pleadings and particulars
24.
Both Compass Group and Woodside took issue with the adequacy of the pleadings and particulars provided by Ms Arnold.
25.
On 22 July 2013 Compass Group’s lawyers wrote to Ms Arnold’s lawyers advising that the Points of Claim did not identify with sufficient particularity each matter of fact and law relied upon by Ms Arnold, asserted that Ms Arnold had not complied with the Order for Sufficient Particulars, and sought that Ms Arnold’s claim be properly particularised. In particular, Compass Group asserted that:
1.6 For example, at paragraph 12 of the Applicant’s Claim it is alleged that our client directly discriminated against your client on the grounds of her sex by subjecting her to detriment. The detriment that is alleged by your client is that our client and Woodside allowed your client to be continuously subjected to bullying and harassment, including sexual harassment, in the course of her employment by Addicoat. The alleged conduct by Addicoat is set out in the particulars to paragraph 12, however:
(1) no date or dates are provided as to when the conduct was alleged to have occurred;
(2) the parties who were present when the alleged conduct occurred are not identified;
(3) the conduct is not identified with any degree of precision so as to enable our client to be able to provide any kind of response, for example, the conduct is described as “making derogatory comments about the quality of [Ms Arnold’s] work” and “making offensive comments about other workplace participants”.
1.7 In addition, at paragraph 16 of the Applicant’s Claim your client alleges that she was subjected to detriment as a result of making the allegations against Addicoat. In the particulars to that allegation, your client alleges that:
(1) from her return to work on 30 August 2011, your client “experienced significant bullying and harassment by other workplace participants on the Okha vessel” but no particulars are provided of the alleged “significant bull[y]ing and harassment”; and
(2) the “bull[y]ing and harassment” was a “direct result of the Applicant making the allegations” but no particulars are provided as to the basis upon which it is alleged that the alleged “bullying and harassment” (which is not adequately particularised) was a “direct result” of your client making allegations.[50]
26.
Compass Group’s lawyers also asserted that paragraphs 12 and 16 of the Points of Claim were “completely inadequate”, and do not disclose a cause of action against …. [Compass Group]” and were therefore liable to be struck out. Notice of an intention to strike out was given additionally on the basis that the Sex Discrimination Claim was without the jurisdiction of the Court under s.46PO(3) of the AHRC Act. Compass Group’s lawyers noted that no allegation of sex discrimination was raised in the AHRC Complaint, and that the Substantive Application only listed as grounds sexual harassment and victimisation.[51]
27.
Compass Group’s lawyers indicated that they would refrain from taking action to strike out in relation to the matters identified until 26 July 2013.[52]
28.
On 31 July 2013 Compass Group’s lawyers again wrote to Ms Arnold’s lawyers noting that Ms Arnold’s lawyers had failed to provide a response to Compass Group’s lawyers’ letter of 22 July 2013, and had made “no discernable attempt to address the deficiencies” in pleading the subject of Compass Group’s lawyers’ letter of 22 July 2013.[53]
29.
The 31 July 2013 letter from Compass Group’s lawyers to Ms Arnold’s lawyers further asserted that:
a) Ms Arnold had failed to comply with her obligations, including the obligation to plead necessary particulars of each claim pursuant to r.16.41 of the Federal Court Rules 2011 (Cth);[54] and
b) was prepared to give a further extension to Ms Arnold until 2 August 2013 to comply with the matters the subject of the 22 July 2013 letter from Compass Group’s lawyers.[55]
30.
The 31 July 2013 letter from Compass Group’s lawyers to Ms Arnold’s lawyers also put Ms Arnold on notice that in view of the alleged failure of Ms Arnold to comply with the Order for Sufficient Particulars, responding to Compass Group’s lawyers letter of 22 July 2013, and to make any discernable attempt to address the deficiencies in the pleadings, that Compass Group may make application for the proceeding to be dismissed on the basis that Ms Arnold had failed to comply with the Order for Sufficient Particulars and prosecute the proceedings with due diligence. Further, the 31 July 2013 letter indicated that if Ms Arnold failed to file and serve a document complying with the Order for Sufficient Particulars by 2 August 2013 instructions would be sought to proceed with an application for summary judgment or to strike-out in full the application by Ms Arnold, and for costs.[56]
31.
Ms Arnold’s lawyers responded by letter dated 31 July 2013 in which they indicated that:
a) the Points of Claim were sufficiently particularised and that they did not intend to provide any further particulars, but noted that Compass Group could make an application under the FCC Rules to seek further and better particulars;
b) the particulars at paragraphs 12 and 16 of the Points of Claim sufficiently established a cause of action against Compass Group, and that it would be premature to bring a strike-out application at this stage; and
c) the Sex Discrimination Claim was within the jurisdiction of the Court because:
f) [Ms Arnold’s] original complaint to the AHRC was on grounds of sexual harassment however [Ms Arnold] has also included the complaint of sexual discrimination in the pleadings. … [Ms Arnold] is able to do so, … pursuant to section 46PO(3) of the AHRC Act as the conduct arises out of the substantially the same unlawful discrimination that was the subject of the terminated complaint.
g) … the complaint of ‘unlawful discrimination’ is defined by section 3 of the AHRC Act and includes any acts, omissions or practices that are unlawful under Part II of the Sex Discrimination Act 1984, this includes sexual discrimination in the workplace and further includes any conduct that is an offence under section 94 of the Sex Discrimination Act 1984, which concerns victimisation.[57]
32.
Compass Group’s lawyers replied on 2 August 2013 indicating their disagreement with the assertions contained in Ms Arnold’s lawyers’ letter of 31 July 2013 and reiterating their intention to file a strike-out application if Ms Arnold did not file and serve a document which complied with the Order for Sufficient Particulars.
33.
On 22 July 2013 Woodside’s lawyers also wrote to Ms Arnold’s lawyers asserting that the Points of Claim lacked sufficient particularisation and did not comply with the Order for Sufficient Particulars, and adopted what was said in the 22 July 2013 letter from Compass Group’s lawyers.[58]
34.
In their 22 July 2013 letter to Ms Arnold’s lawyers Woodside’s lawyers also identified what they said were further matters insufficiently particularised in the Points of Claim as follows:
With respect to the particulars in paragraph 9:
· Your client alleges that there is a “male-dominated” nature to the work environment without particularising how that claim is made;
· Your client claims that our client should have been “proactive” in addressing sexual harassment issues, without any particularisation of how our client could and should have been proactive; and
· Your client alleges that “appropriate policy and training was not implemented prior to the alleged sexual harassment occurring” without particularising what policy and training was appropriate, and how such policy or training should have been implemented.
With respect to the particulars in paragraph 16:
· Your client claims that she reported the alleged victimisation to Callum Hamilton and Pete Davis of our client, but does not particularise when or how this occurred; and
Your client also alleges that she reported the victimisation to Harney, Smith and Donnan of our client on “several occasions” without disclosing when or how this occurred.[59]
35.
It was said that the above deficiencies in particulars rendered Ms Arnold’s claim liable to be struck out.[60]
36.
Woodside’s letter of 22 July 2013 also indicated its agreement with the assertion by Compass Group’s lawyers that the Sex Discrimination Claim was without the jurisdiction of the Court.[61]
37.
Woodside’s lawyers indicated that unless the alleged deficiencies were remedied by 26 July 2013 instructions would be sought to proceed with a strike-out application either in support of the strike-out application foreshadowed by Compass Group’s lawyers, or with a strike-out application by Woodside.[62]
38.
By letter dated 30 July 2013 Woodside’s lawyers wrote to Ms Arnold’s lawyers noting that they had received no reply, and pointed out the obligations in relation to pleadings, and in particular r.16.41 of the FC Rules in relation to particulars. The 30 July 2013 letter from Woodside’s lawyers repeated the demands made in their letter of 22 July 2013 and indicated that if the deficiencies were not remedied by 2 August 2013 instructions would be sought to proceed with a strike-out application or an application for particulars.[63]
39.
By letter dated 31 July 2013 Ms Arnold’s lawyers responded attaching a copy of their letter of the same date to Compass Group’s lawyers, and also further indicating that they believed that the Points of Claim were sufficiently particularised.[64]
The Application in a Case
40.
In the Application in a Case Compass Group seeks orders that:
a) the Sex Discrimination Claim be struck out in full with respect to Compass Group on the basis that there is no jurisdiction to proceed with those allegations under s.46PO(3) of the AHRC Act;[65]
b) further or in the alternative to (a) above, that the Sex Discrimination Claim and the Victimisation Claim against Compass Group should be dismissed under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth)[66] and r.13.10 of the Federal Circuit Court Rules 2001 (Cth)[67] on the grounds that Ms Arnold has no reasonable prospect of successfully prosecuting the claim as the Points of Claim fail to disclose a cause of action against Compass Group;
c) further or in the alternative to (a) and (b) above, that the Substantive Application against Compass Group be dismissed as being insufficient in law arising from a lack of particularity in full or in part; and
d) further, or in the alternative to (a), (b) and (c) above, that the Substantive Application against Compass Group be dismissed under r.13.03B(1)(a) of the FCC Rules[68] on the basis that Ms Arnold has failed to comply with the Order for Sufficient Particulars and failed to prosecute the proceeding with due diligence; and
e) further, or in the alternative to (a), (b), (c) and (d) above, that Ms Arnold comply with the Order for Sufficient Particulars to “file and serve points of claim, with sufficient particularity of each matter of fact and law relied upon by the Applicant …” within 7 days.
Consideration of grounds of Application in a Case
Striking out of Sex Discrimination Claim
Section 46PO(3) of the AHRC Act
41.
Section 46PO(3) of the AHRC Act provides as follows:
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.
Compass Group’s submissions
42.
Compass Group submits that the Sex Discrimination Claim should be struck out under s.46PO(3) of the AHRC Act. Compass Group says that the relevant principles in determining this issue are as follows:[69]
a) whether the AHRC Complaint is in “… the shape which it had assumed at the time of its termination” by the AHRC;[70]
b) that an alleged incident falls within s.46PO(3) of the AHRC Act where it is “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance”;[71]
c) an applicant is permitted to allege “different facts … provided, however, that the facts now alleged are not different in substance from the facts formerly being alleged”;[72]
d) in light of the flexibility permitted by s.46PO(3)of the AHRC Act, its application “should not be read with the same strictures as apply to a pleading in a court”;[73] and
e) there is a balance to be achieved between “a degree of flexibility”, as suggested by s.46PO(3) of the AHRC Act, and the important “constraint” in raising a complaint before the Court not raised before the AHRC.[74]
43.
Taking the above principles into account, Compass Group submits that the Court should determine that the Court does not have jurisdiction to proceed with the Sex Discrimination Claim against Compass Group under s.46PO(3) of the AHRC Act as:
a) the AHRC Complaint, at the time of its termination:
i) was limited to allegations in relation to sexual harassment and victimisation; and
ii) did not purport to make, against Compass Group, any allegations of sex discrimination;
b) the Sex Discrimination Claim does not fall within s.46PO(3) of the AHRC Act as it is not capable of being characterised as an act that arose out of the same unlawful discrimination of which Ms Arnold complained, or which was of the same substance, nor does it arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint as:
i) there was never any suggestion in the AHRC Complaint that Ms Arnold was ever discriminated against on the basis of her sex by Compass Group, which is evidenced by the fact that the AHRC Complaint does not include any particulars of discrimination;
ii) no allegations were made, nor were any facts pleaded in the AHRC Complaint as to any:
(A) less favourable treatment of Ms Arnold by Compass Group on the grounds of Ms Arnold’s sex; or
(B) detriment imposed on Ms Arnold by Compass Group on the grounds of Ms Arnold’s sex;
iii) the allegations that were made in the AHRC Complaint at paragraphs 11 and 12 were made in support of the allegation that Ms Arnold was “sexually harassed and bullied” by Mr Addicoat; and
iv) there was no allegation, nor were any facts provided, that there was any causal nexus between an action taken by Compass Group and Ms Arnold’s sex;
c) the new allegations of “detriment” at paragraph 12 of the Points of Claim are different in substance from the facts formerly alleged in the AHRC Complaint as there was never an indication in the AHRC Complaint that Compass Group imposed a detriment on Ms Arnold because of Ms Arnold’s sex;
d) whilst it is established that in light of the flexibility permitted by s.46PO(3) of the AHRC Act, the application of the section “should not be read with the same strictures as apply to a pleading in a court”[75], the Court should take into account that:
i) Ms Arnold had legal advice at the time of the AHRC Application and her lawyers prepared the AHRC Application, the Substantive Application and the Points of Claim. It should, therefore, be taken that those documents were prepared with care and list each alleged act, omission or practice said to give rise to the unlawful discrimination;[76] and
ii) even at the time of making the Substantive Application, the Applicant only listed “Sexual Harassment” and “Victimisation” as the grounds of the complaint, and only referred to ss.28A-28L and s.94 of the SD Act, and did not refer to any allegations in relation to unlawful discrimination in employment on the grounds of sex; and
e) the balance to be achieved should be exercised in favour of Compass Group:
i) for the reasons set out above;
ii) because Ms Arnold’s lawyers originally made a conscious decision not to pursue the Sex Discrimination Claim as that claim did not and does not arise out of the original facts; and
iii) because Ms Arnold has attempted to transform the allegations that Mr Addicoat bullied her into a Sex Discrimination Claim against Compass Group.
Woodside’s submissions
44.
Woodside adopted the submissions of Compass Group.
Ms Arnold’s submissions
45.
Ms Arnold submits that:
a) the Sex Discrimination Claim is a cause of action arising from the same facts that were the subject of the AHRC Complaint;
b) in including the Sex Discrimination Claim Ms Arnold relies on s.46PO(3) of the AHRC Act which she asserts permits her to include the Sex Discrimination Claim in the Substantive Application on the basis that whilst the facts bear a different legal character from what was in the AHRC Complaint, the Sex Discrimination Claim is no different in substance from the legal character of the AHRC Complaint;
c) “unlawful” is defined in s.3 of the AHRC Act and includes any act, omissions, or practices that are unlawful under Part II of the SD Act, which includes sex discrimination;
d) the claim that Ms Arnold ought not be permitted to proceed with the Sex Discrimination Claim because the AHRC Complaint and the Substantive Application to this Court were drafted by a legal representative is misconceived; and
e) the commentary in the authorities referred to by Compass Group, and upon which it relies, were made in the context of considering the principles of fairness and natural justice, which is different from considering the question of the Court’s jurisdiction to include additional claims of a similar legal character borne out of the same set of facts.
Consideration
46.
In Fuji Xerox the Federal Court dealt with the provisions of s.46PO(3) of the AHRC Act[77] and in particular the legal characterisation of the allegations of fact made or sought to be made. The Federal Court observed that:
In the two situations with which … [s.46PO(3) of the AHRC Act] deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.[78]
47.
Of s.46PO(3)(a) of the AHRC Act the Federal Court in Fuji Xerox said that it proceeded on the basis that the allegations of fact being made before the Court were the same as those made in the complaint terminated by the AHRC, and went on to observe that:
However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.[79]
… on the other hand, [it] permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.[80]
It appears to me that …. [s.46PO(3)(a)] was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work …[81]
… it is apparent that … [s.46PO(3)(a)] … provides no warrant for an applicant in the proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. … [s.46PO(3)(b)] … does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission.[82]
48.
In Dye (No. 2) the Full Court of the Federal Court made the following general observations with respect to s.46PO(3) of the AHRC Act:
46 Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B . Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F -G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39] .
48 The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:
“Court not bound by technicalities
46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”
The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.[83]
49.
In Dye (No. 2) the Full Court of the Federal Court held that an additional allegation of sexual assault, not previously made in respect of the complaint terminated by the AHRC, was an act that arose out of the same unlawful discrimination about which complaint had been made, or was of the same substance, in circumstances where the complaint to the AHRC had complained of the applicant being subject to a course of sexual harassment in a variety of forms over a period of months, and the new incident fell, in time, between two other alleged incidents of sexual harassment which were 13 days apart.[84] The Full Court of the Federal Court held that the scope of the complaint to the AHRC was sufficiently wide to prevent summary exclusion of the additional factual allegation at an interlocutory stage, but observed that:
There may well be cases where at an interlocutory stage it is clear that an allegation could not be made in an application under s 46PO(3) because it fell outside any issue reasonably justiciable in respect of a complaint terminated by the Commission.[85]
50.
The issue of whether a matter the subject of a complaint to the AHRC alleging sexual harassment can, on a subsequent application to a federal court following the termination of conciliation before the AHRC, be brought to include a claim of sex discrimination has been extensively dealt with in Hall & Ors v A & A Sheiban Pty Ltd & Ors,[86] Elliott v Nanda & Anor[87] and Wattle v Kirkland & Anor (No. 2).[88]
51.
In Elliott the applicant sought at the commencement of the hearing to amend the application by seeking a declaration that the respondent had discriminated against the applicant in her employment on the basis of sex.[89] The issue arose in circumstances where the original complaint was found by the then Human Rights and Equal Opportunity Commission to relate to incidents which would constitute sexual harassment and sex discrimination, but because of findings that were made it was unnecessary to consider whether or not the relevant incidents constituted sex discrimination.[90]
52.
For present purposes it suffices to observe that in Elliott the Federal Court adopted the reasoning of Justice French (as he then was) in Hall, which was summarised in Elliott as follows:
121 French J considered the question at length. After observing that one of the stated objects of the S D Act (s 3(a)) is to give effect to the Convention On The Elimination Of All Forms Of Discrimination Against Women 1979 done at New York on 18 December 1979, which contains a broad definition of discrimination, his Honour noted (at 274-275):
“[The Act] states one of its objects to be ‘to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace and in educational institutions’: s 3(c). That object is pursued in Div 3, Pt II, which is headed ‘Discrimination Involving Sexual Harassment’, a context which led Spender J to conclude, rightly in my respectful opinion, that sexual harassment is a form of discrimination under the Act: Aldridge v Booth (1988) 80 ALR 1 at 16.”
122 French J then considered a number of American, Canadian and English authorities which support the view that sexual harassment is a species of sex discrimination. His Honour continued (at 276):
“There is nothing in the concept of discrimination in s 4 of the [S D Act] to suggest that it should not extend to sexual harassment in the work place in the same way that it has been extended by the American and British courts.”
123 French J then referred to the conclusion of Mathews J (in her Honour's capacity as a judicial member of the NSW Equal Opportunity Tribunal) in O'Callaghan v Loder that sexual harassment could constitute sex discrimination under s 25 of the Anti-Discrimination Act 1977 (NSW). His Honour commented (at 277):
“This exposition does not embody any distinct requirement that there be a discriminatory element in the employer's behaviour. That is implicit in the very nature of sexual harassment. The implication is also to be found in the concept of sexual harassment covered by s 28. That section puts beyond doubt that sexual harassment in employment is a species of unlawful sex discrimination. The requirements of s 14 relating to discriminatory treatment in the terms and conditions of employment or subjection to detriment are subsumed in the nature of the prohibited conduct … ”[91]
53.
In Elliott, the Federal Court went on to observe that:
I respectfully agree with the statement of French J in Hall v A & A Sheiban Pty Ltd and of Spender J in Aldridge v Booth that s 14 is capable of extending to conduct that constitutes sexual harassment under Div 3 of Pt II. In my opinion, such a principle is consistent with the purpose and scheme of the S D Act and also with the overseas jurisprudence set out in Hall v A & A Sheiban Pty Ltd and O'Callaghan v Loder on the nature and scope of “sex discrimination”.[92]
54.
The Federal Court went on in Elliott to observe that the then Human Rights and Equal Opportunities Commission had in subsequent cases proceeded on the basis that conduct is capable of constituting both sex discrimination under ss.5 and 14 of the SD Act and sexual harassment under Division 3 of Part 2 of the SD Act.[93]
55.
In Wattle (No. 2) the applicant at hearing sought to add a claim of sex discrimination to a claim of sexual harassment, and in doing so relied upon Fuji Xerox.[94] Relevantly, the Federal Magistrates Court said that:
Each of the above incidents satisfies the description of sexual harassment in s.28A of the SDA. It was conduct of a sexual nature in relation to the applicant in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would have been offended, humiliated or intimidated. Mr Kirkland touched the applicant intimately. He made sexual comments to her. His conduct was clearly unwelcome. In addition, the conduct, constituting as it does sexual harassment for the purposes of the SDA, also establishes unlawful discrimination on the grounds of sex against the applicant: Elliott v Nanda & Commonwealth [2001] FCA 418 per Moore J at paragraphs 125-130; Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217 per French J at pp 274-277. I accept Mr Hillard’s submission that Mr Kirkland’s behaviour was exclusively towards the applicant as a female worker. There was no similar conduct directed towards male workers. The applicant was singled out for this conduct on account of her sex. Accordingly, she was treated less favourably on the ground of her sex by the respondents. Mr Kirkland is liable for the sexual harassment and both respondents are liable as principals to the contract of bailment with the applicant for the sex discrimination against the applicant. The liability of the respondents in relation to the sex discrimination is both joint and several under s.16 of the SDA. The conduct of Mr Kirkland was unwelcome, offensive, distressing and humiliating to the applicant and thereby imposed a detriment on her within the meaning of s.16(d) of the SDA: Elliott v Nanda & Commonwealth at paragraph 130.[95]
56.
In Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors[96] the then Federal Magistrates Court held that the action of a fellow employee of the applicant constituted not only sexual harassment, but also sex discrimination within the meaning of s.14(2)(d) of the SD Act, for which the respondent employer was vicariously liable and in relation to which it had itself therefore unlawfully discriminated against the applicant on the ground of her sex.[97]
57.
Reservations have however been expressed by single Judges of the Federal Court as to whether the sexual harassment by one employee of another employee within the meaning of s.28A of the SD Act also constitutes sex discrimination under ss.5 and 14 of the SD Act. In Gilroy v Angelov[98] those reservations were expressed, and the Federal Court said that it thought s.14(1) and (2) of the SD Act:
… are intended to deal with acts or omissions of the employer that discriminate on one of the proscribed grounds. It is artificial to extend the concepts embodied in those sections in such a manner as to include the sexual harassment of one employee by another. As it seems to me, it was because s 14 did not really fit the case that s 28B was enacted.[99]
58.
In Leslie v Graham[100] the Federal Court found that an employee had sexually harassed another employee within the meaning of s.28B of the SD Act and that the employer was vicariously liable for that conduct, and although agreeing that s.14 of the SD Act was capable of extending the conduct that constituted sexual harassment as defined by s.28A of the SD Act, went on to state that:
… while [the SD Act] renders unlawful discrimination by an employer on the ground of sex, it does not render unlawful discrimination by a fellow employee on the ground of sex … I am not persuaded that [the respondent’s employee’s] sexual harassment of [the applicant] constituted discrimination against her by her employer.[101]
59.
On the basis of Hall, Elliott, Wattle (No. 2) and Car Buyers it is clear that it is arguable that conduct which constitutes sexual harassment can also constitute sex discrimination for the purposes of the SD Act. Thus, the same facts can give rise to an action of a different legal character. That is a sufficient basis to conclude that it will be arguable at final hearing in this matter that the allegations of sexual harassment made in the AHRC Complaint might found the Sex Discrimination Claim.
60.
In this case no allegation of sex discrimination was made in the AHRC Complaint. Because the AHRC Reasons for Decision were not put in evidence by either party there is no evidence of the shape which the AHRC Complaint had assumed at the time of the AHRC Notice of Termination. The Court does, however, consider that it can be inferred that the Sex Discrimination Claim was not part of the terminated AHRC Complaint. That is because, when the Substantive Application was filed in this Court, the Sex Discrimination Claim was not made as part thereof, and only the Sexual Harassment Claim and Victimisation Claim were made by Ms Arnold as part of the Substantive Application.
61.
The mere fact that the Sex Discrimination Claim was not made as part of the AHRC Complaint, or the Substantive Application, and was not raised until the Points of Claim were filed, does not, however, preclude its consideration by the Court in these proceedings, because s.46PO(3)(b) of the AHRC Act provides that the alleged unlawful discrimination in an application to this Court “must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint”.
62.
The first question for present purposes is therefore whether the Sex Discrimination Claim arguably arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint. That involves a comparison of the acts, omissions and practices said to constitute the sex discrimination as alleged in the Points of Claim with the acts, omissions and practices the subject of the AHRC Complaint. The following table makes that comparison:
Points of Claim
AHRC Complaint
Para.12: Pursuant to section 14(2)(d) of the Act … [Compass Group and Woodside] directly discriminated against … [Ms Arnold] on the grounds of … [Ms Arnold’s sex by subjecting her to a detriment. The detriment … [Ms Arnold] suffered was as a result of allowing … [Ms Arnold] to be continuously subjected to bullying and harassment, including sexual harassment, in the course of her employment by Addicoat.
Para.9: [Ms Arnold] … submits that from approximately July 2010 she was bullied and sexually harassed at work by Luke Addicoat.
Para.12, particular (a): making derogatory comments about the quality of … [Ms Arnold’s] work such that … [Ms Arnold] and other workplace participants could hear him [Mr Addicoat].
Para.10(a): The bullying of … [Ms Arnold] by Luke Addicoat included … making derogatory comments about the quality of … [Ms Arnold’s] work such that … [Ms Arnold] and other workplace participants could hear him [Luke Addicoat].
Para.12(b): The conduct by Addicoat included … complaining about the presence of contract workers on the vessels such that … [Ms Arnold] and other workplace participants could hear him [Mr Addicoat].
Para.10(b): The bullying of … [Ms Arnold] by Luke Addicoat included … complaining about the presence of contract workers on the vessels such that … [Ms Arnold] and other workplace participants could hear him [Mr Addicoat].
Para.12(c): The conduct by Addicoat included … making offensive comments about other workplace participants to … [Ms Arnold] and pressuring … [Ms Arnold] to join in.
Para.10(c): The bullying of [Ms Arnold] by Luke Addicoat included … making offensive comments about other work participants to … [Ms Arnold] and pressuring … [Ms Arnold] to join in.
Paras.12(d) and 7(a): The conduct by Addicoat included … leering at … [Ms Arnold] or physically standing over … [Ms Arnold] while she was working.
Para.10(d): The bullying of … [Ms Arnold] by Luke Addicoat included … staring at … [Ms Arnold] or physically standing over … [Ms Arnold] while she was working.
Paras.12(d) and 7(b): The conduct by Addicoat included … making sexist and derogatory comments about women to [Ms Arnold], including saying to … [Ms Arnold], on or about 13 August 2011, the following words or words to the effect of: ‘women should be at home having babies, cooking, cleaning and ironing creases in their husband’s jeans’; and ‘don’t you know ‘women’ means kitchen spelt backwards?’.
Paras.11(a) and 12: The sexual harassment of … [Ms Arnold] included … making sexist and derogatory comments about women to … [Ms Arnold]. On 13 August 2011, while at work on the Okha vessel Luke Addicoat said to … [Ms Arnold] among other things:
women should be at home having babies, cooking, cleaning and ironing creases in their husband’s jeans
and
Don’t you know women means kitchen spelt backwards?
Paras.12(d) and 7(c): The conduct by Addicoat included … making derogatory comments about the sexuality of … [Ms Arnold’s] supervisor, … Chief Caterer of … [Woodside], to … [Ms Arnold] and stating that the supervisor’s sexuality gave … [Ms Arnold] an advantage at work because she was a woman.
Para.11(b): The sexual harassment of … [Ms Arnold] included … making derogatory comments about … [Ms Arnold’s] supervisor’s lesbian sexuality to … [Ms Arnold] and stating that the supervisor’s sexuality gave … [Ms Arnold] an advantage at work because she was a woman.
63.
There is further conduct alleged in attachment 1 to the AHRC Complaint which fits within the parameters of the acts alleged in paragraphs 7 and 12 of the Points of Claim.
64.
It is manifestly clear that the acts alleged to constitute the Sex Discrimination Claim are acts which are alleged in the AHRC Complaint to constitute sexual harassment, and the Sex Discrimination Claim therefore arises out of the same acts which were the subject of the terminated AHRC Complaint.
65.
The claim by Compass Group that the new allegations of “detriment” at paragraph 12 of the Points of Claim are different in substance from the facts alleged in the AHRC Complaint because there was never an indication that a detriment was imposed on Ms Arnold because of her sex in the AHRC Complaint is not to the point. That is because the requirement of detriment, and also of less favourable treatment, is subsumed into the nature of the conduct inherent in sexual harassment.[102]
66.
The Court cannot therefore accept Compass Group’s submission that the Sex Discrimination Claim does not arise out of the same acts as were the subject of the AHRC Complaint, or at the very least, substantially the same acts, or that it does not fall within the scope of s.46PO(3) of the AHRC Act. In the Court’s view the conduct alleged to constitute the Sex Discrimination Claim falls within the scope of s.46PO(3)(b) of the AHRC Act.
67.
The fact that the Sex Discrimination Claim was not part of the AHRC Complaint, or a part of the Substantive Application, and the further fact that each of the AHRC Complaint, the Substantive Application and the Points of Claim were drafted by Ms Arnold’s lawyers, are matters to be considered in exercising the Court’s discretion as to whether to allow the Sex Discrimination Claim to remain as part of the Points of Claim. In the Court’s view, those matters do not bear much weight when considered against other facts, namely:
a) the obvious policy behind s.46PO(3)(b) of the AHRC Act which is to provide flexibility to allow claims such as this to be brought before the Court where they rely upon the same acts; and
b) that there is no significant prejudice identified by Compass Group, and especially so in circumstances where:
i) for reasons otherwise set out below Ms Arnold will have to file and serve Amended Points of Claim; and
ii) no Points of Defence, and no affidavit evidence for hearing, have yet been filed.
68.
Having regard to:
a) the fact that s.46PO(3)(b) of the AHRC Act allows a different legal characterisation to be asserted based on the same facts;
b) section 46PO(3)(b) of the AHRC Act is intended to permit some flexibility, and is not intended to preclude amendments giving rise to arguable claims for relief;
c) the factual matters involved in the Sex Discrimination Claim are, for all intents and purposes, the same as those asserted in the AHRC Complaint and the Substantive Application;
d) the proceedings are still not significantly advanced, with no Points of Defence filed and no affidavit evidence for hearing yet filed;
e) the Sex Discrimination Claim does not fall outside of any issue reasonably justiciable in these proceedings;[103] and
f) by reason of s.46PR of the AHRC Act the Court is not bound by technicalities or legal forms in these proceedings,
the Court is of the view that the Sex Discrimination Claim is within the jurisdiction of the Court to hear by reason of s.46PO(3)(b) of the AHRC Act, and that in the circumstances of these proceedings there are no discretionary reasons for the Court not to exercise its power arising from its jurisdiction to hear the Sex Discrimination Claim.
Dismissal of Sex Discrimination Claim and Victimisation Claim on basis of no reasonable prospect of success
Legislation
69.
Section 17A of the FCCA Act is in the following terms:
17A. Summary judgment
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
70.
Rule 13.10 of the FCC Rules provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
71.
Sections 5, 14 and 94 of the SD Act relevantly provide as follows:
5. Sex discrimination
(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.
(2) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
14. Discrimination in employment or in superannuation
(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
94. Victimisation
(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) … ; or
(d) …; or
(e) …; 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.
Compass Group’s submissions
72.
Compass Group submits that:
a) the Sex Discrimination Claim and the Victimisation Claim should be dismissed against Compass Group under s.17A of the FCCA Act and r.13.10 of the FCC Rules on the grounds that Ms Arnold has no reasonable prospect of successfully prosecuting the claim as the Points of Claim fail to disclose a cause of action against Compass Group;
b) the expression “no reasonable prospect” will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment.[104] Compass Group submits that Ms Arnold’s case against it falls within that class of case as set out below; and
c) the Sex Discrimination Claim against Compass Group is founded upon sex discrimination under ss.5 and 14 of the SD Act. To make out the Sex Discrimination Claim Ms Arnold must establish that:
i) she was treated less favourably in circumstances that are the same or not materially different from a male employee;
ii) the reason for the less favourable treatment was her sex; and
iii) Compass Group subjected her to a detriment on the grounds of her sex.
73.
Compass Group also submits that the Sex Discrimination Claim should be dismissed under s.17A(2) of the FCCA Act and r.13.10 of the FCC Rules on the grounds that Ms Arnold has no reasonable prospect of successfully prosecuting the Sex Discrimination Claim, as:
a) the Sex Discrimination Claim lacks any meaningful allegation or particulars of any detriment, less favourable treatment or segregation as required in order to meet the definition of sex discrimination in s.5 of the SD Act, and the allegations made at paragraph 12 of the Points of Claim:
i) lack any basis for the belief, or any allegation as to the basis upon which it is asserted, that Compass Group “directly discriminated against the Applicant on the grounds of the Applicant’s sex”; and
ii) draw no connection drawn between Ms Arnold’s sex and the alleged detriment.
b) the Particulars to paragraph 12 of the Points of Claim are manifestly inadequate and fail to make any attempt to identify:
i) the nature of the alleged conduct;
ii) who engaged in that conduct; and
iii) when the conduct occurred,
and there is no attempt to make any link with the Sex Discrimination Claim by reason of a failure to provide any facts in support of the allegation that Compass Group subjected Ms Arnold to detriment because of her sex;
c) the alleged conduct, if established at hearing, at most may amount to unpleasant conduct, and is distinguishable from conduct amounting to sex discrimination which requires some less favourable treatment because of Ms Arnold’s sex;
d) even if it was established that Ms Arnold was discriminated against by Mr Addicoat on the grounds of her sex (which is denied), Mr Addicoat was not an employee of Compass Group and on the case as currently pleaded Ms Arnold does not allege that Compass Group was vicariously liable for Mr Addicoat’s actions, nor is there is any identified basis upon which the conduct of Mr Addicoat can be taken to be Compass Group’s conduct as the “employer” under s.14(2)(d) of the SD Act;
e) in order for Ms Arnold’s claim to be successful, she must prove that Compass Group treated her less favourably than it would have treated a male employee (in the same or not materially different circumstances), but Ms Arnold does not provide any basis upon which it is asserted that she was treated any differently than a man would have been treated. In particular, Ms Arnold states in the Particulars that Mr Addicoat complained about the presence of contract workers and made offensive comments about other workplace participants to Ms Arnold and pressured her to join in in circumstances where there is no allegation that all or any of the other workplace participants were female;
f) even if an alleged detriment was established (which is denied), this was not action taken by Compass Group because of Ms Arnold’s sex and, therefore, Ms Arnold’s Sex Discrimination Claim has no reasonable prospect of success and should be struck out; and
g) the Court has no evidence before it of a detriment within the meaning contemplated by s.14(2)(d) of the SD Act and Compass Group submits that s.14(2)(d) of the SD Act has no application to the present claim.
74.
To make out the Victimisation Claim under s.94 of the SD Act, Compass Group submits that Ms Arnold must prove that:
a) Compass Group subjected, or threatened to subject, Ms Arnold to a detriment; and
b) the reason for subjecting (or threatening to subject), Ms Arnold to the detriment was “because” she made an allegation that Mr Addicoat sexually harassed her, that is, Compass Group must subject (or threaten to subject) Ms Arnold to detriment on the ground that she made the allegations against Mr Addicoat.
75.
With respect to whether the Victimisation Claim can be made out Compass Group submits that:
a) the principle to be applied in an application such as this is analogous to the principle explained in General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[105] which states that, in order for a proceeding to be dismissed in full, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed, or is manifestly groundless, or that it discloses a case which the Court is satisfied cannot succeed;[106]
b) Ms Arnold fails to specify the identity of the person who allegedly subjected her to detriment “as a result of” making allegations against Mr Addicoat;
c) the Points of Claim also fail to identify or define what “the allegations against Addicoat” are. Presumably Ms Arnold is referring to paragraph 14 of the Points of Claim where it states that: “[Ms Arnold] alerted the [Compass Group and Woodside] to the sexual harassment and sexual discrimination”, and particulars (a) and (b) to paragraph 14 of the Points of Claim which provide that:
i) immediately following the “incident” on or about 13 August 2011, Ms Arnold informed her supervisor, Glenn Evans, Woodside’s Chief Caterer of “what had occurred”; and
ii) Ms Arnold reported the “incident” to Katrina Madden, Recruitment and Logistics Manager of Compass Group and Shane Byrne, Area Manager of Compass Group;
d) the “incident” and “what had occurred” is not, however, defined in the Points of Claim. No date is specified as to when the “incident” was reported and how the “incident” was brought to Compass Group’s attention, including whether it was reported in writing or orally, and if it was oral, whether the conversation was in person or by telephone, or if it was in writing, the document is not specified;
e) in the Particulars to the Victimisation Claim at paragraph 16 of the Points of Claim, Ms Arnold alleges that:
i) from her return to work on 30 August 2011, she “experienced significant bullying and harassment by other workplace participants on the Okha vessel”, but no particulars are provided of the alleged “significant bullying and harassment”, including who were the workplace participants who engaged in the bullying and harassment, and including whether they were employees of Compass Group or Woodside or employees of a third party unconnected with these proceedings;
ii) the “bullying and harassment was a direct result of … [her] making the allegations” but Ms Arnold provides no factual basis for that assertion; and
iii) the “victimisation” continued to the point that it was “untenable for … [her] to continue employment on the Okha vessel”;
f) Ms Arnold fails to identify with sufficient or any particularity the nature of the alleged detriment, but also:
i) it is unclear whether Ms Arnold is alleging that more than one form of detriment was imposed on her “as a result of making the allegations against Addicoat”;
ii) “the allegations against Addicoat” are not defined or identified with any particularity; and
iii) there is a complete failure to identify what action was taken by Compass Group to constitute a detriment taken against Ms Arnold because of the fact that she made allegations against Mr Addicoat;
g) Ms Arnold’s case is essentially that she made the allegations and then she suffered detriment but no connection is made between those two independent things other than to make a submission without a factual basis in the Particulars to paragraph 12 of the Points of Claim that the Applicant was subjected to bullying and harassment as a direct result of her making the allegations; and
h) for the reasons set out above, the Points of Claim fail to disclose a cause of action against Compass Group and should therefore be struck out under s.17A(2) of the FCCA Act and r.13.10 of the FCC Rules as it is unclear what case Compass Group is required to meet at hearing.
Woodside’s submissions
76.
Woodside adopted the submission of Compass Group.
Ms Arnold’s submissions
77.
In relation to the test for summary dismissal Ms Arnold asserts that:
a) rule 13.10 of the FCC Rules requires that the claim made be so obviously untenable that it cannot possibly succeed, or is so manifestly faulty that it does not admit of an argument, or discloses a case which the Court is satisfied cannot succeed, or under no possibility can there be a good cause of action allowing the application to stand; and
b) is a power to be exercised sparingly, and not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite conclusion.[107]
78.
In relation to the Sex Discrimination Claim Ms Arnold submits that:
a) paragraph 12(a)-(d) of the Points of Claim identifies the conduct to which she was subjected to by Mr Addicoat and which was directed to her because she is a female;
b) Mr Addicoat’s conduct was permitted by Compass Group to persist in Ms Arnold’s work environment;
c) it is open to the Court to draw inferences of sex discrimination based on sexual harassment conducted by a workplace participant;[108]
d) Compass Group may argue that it does not believe the evidence to be led at hearing which would permit the Court to draw such an inference, but that position must be tested at hearing;
e) at paragraph 14 of the Points of Claim Ms Arnold claims that Compass Group failed to address her complaints seriously and permitted Ms Arnold, as pleaded in paragraph 16 of the Points of Claim, to be a target for further bullying and harassment by workplace participants, including employees of Compass Group, against Ms Arnold for making the complaint of sexual harassment against a male staff member, and notes that a claim of sex discrimination on this basis was upheld in Employment Services Australia;
f) she was subjected to bullying and harassment about the complaints of sexual harassment she made against a male member of “staff”;
g) Ms Arnold’s claim asserts facts, which are to be proved at hearing, and which lay a legitimate foundation for the Sex Discrimination Claim against Compass Group;
h) paragraph 16(c) of the Points of Claim asserts that following the Sexual Harassment Claim being brought to the attention of Compass Group, as outlined in paragraph 14 of the Points of Claim, Ms Arnold was subjected to bullying and harassment by workplace participants, including employees of Compass Group, concerning her Sexual Harassment Claim;
i) Ms Arnold was subjected to bullying and harassment because of the complaints of sexual harassment she made about a male member of staff;
j) paragraph 16(h) and (l) of the Points of Claim particularises further conduct which occurred in response to Ms Arnold’s complaint which subjected Ms Arnold to a detriment; and
k) Ms Arnold particularised her detriment at paragraph 16(e) and (k) of the Points of Claim.
79.
Ms Arnold also submits that:
a) the decision in Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited[109] summarises the relevant considerations and principles in an application to strike out a Statement of Claim;[110]
b) rule 16.21 of the FC Rules sets out the circumstances where a party may apply to the Court for all or part of a pleading to be struck out. Compass Group has not addressed any of the criteria as prescribed by this rule;
c) Compass Group’s submission is that not all of the material facts are disclosed in the pleadings;
d) the power to strike out pleadings cannot be exercised where the alleged deficiency causes no confusion, does not raise a substantive principle and where deficiencies can be overcome by the provision of particulars;[111]
e) Compass Group’s remedy is to make a request for Ms Arnold to answer a request for further and better particulars;
f) Compass Group’s submissions where it claims to require particulars of the “bullying and harassment” would constitute a request for evidence not fact; and
g) Compass Group’s submissions claim to not know the detriment suffered by Ms Arnold. Compass Group has not explained how it fails to understand paragraph 16(e), (h), (k) and (l) of the Points of Claim are not detriments suffered by Ms Arnold.
Consideration
80.
The words of s.17A of the FCCA Act mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning.[112] The Court must embark upon a “practical judgment … as to whether the applicant has more than a ‘fanciful’ prospect of success”.[113] The task was described in Spencer as follows:
… The … Court may exercise power … if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[114]
81.
The High Court’s observations in Spencer can be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
82.
The Federal Court possesses a like power under s.31A(2)(b) of the FC Act 1976. In relation to that power it has been observed that:
a) a court must be satisfied that the applicant has no reasonable prospect of success, and whilst a court need not be satisfied that the proceeding is hopeless or bound to fail, it must be very cautious not to do a party an injustice by summarily dismissing proceedings;
b) the legislature’s intention in introducing the provisions concerning summary dismissal was:
i) to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners[115] and General Steel Industries[116] which required that the allegations be clearly so untenable that they could not possibly succeed;
ii) not to require the Court to engage in lengthy and elaborate hearings on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a hearing; and
iii) not to remove the bar completely;
c) the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power;
d) what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits;
e) if evidence can give colour and content to allegations, and questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
f) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to hearing. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a hearing;
h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; and
i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.[117]
83.
It is appropriate that at the outset the Court observes that:
a) contrary to the submissions of both parties, General Steel Industries no longer represents the law with respect to the striking out of pleadings in this Court,[118] and has not done so since the introduction of s.17A of the FCCA Act into the then
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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