Artinos v Stuart Reid Pty Ltd
[2007] FMCA 1141
•17 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARTINOS v STUART REID PTY LTD | [2007] FMCA 1141 |
| HUMAN RIGHTS – Discrimination in employment on the grounds of marital status and age – sexual harassment – interlocutory dismissal of application – no reasonable prospects of success. |
| Age Discrimination Act 2004 (Cth) Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH, 46PO Sex Discrimination Act 1984 (Cth), s.28B Workplace Relations Act 1996 (Cth) |
| Penhall-Jones v State of New South Wales [2006] FCA 934 Rana v University of South Australia (2004) 136 FCR 244 Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Limited & Ors [2007] FMCA 157 |
| Applicant: | MARIE ARTINOS |
| Respondent: | STUART REID PTY LTD |
| File Number: | SYG969 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms M Horvath Truman Hoyle Lawyers |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) and rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,460.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG969 of 2007
| MARIE ARTINOS |
Applicant
And
| STUART REID PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion of which notice was given on 26 June 2007 seeking the summary dismissal of an application to the Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The application under the HREOC Act was filed on 26 November 2006. It claimed relief in relation to alleged sexual harassment by Mr Stuart Reid and Ms Ximena Marco, also single status and age discrimination by Mr Stuart Reid, underpayment of wages by Mr Stuart Reid, and defamation by Mrs Vanessa Reid.
The application was accompanied by a form 167 claim under the HREOC Act which provided basic factual and procedural details in relation to claim. The application was also supported by a short affidavit by the applicant and by a copy of the notice of termination of a complaint under the HREOC Act by the delegate of the President. The complaint was terminated on 31 October 2006 pursuant to s.46PH(1)(b) of the HREOC Act on the basis that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.
The alleged events leading to the present proceedings occurred between 20 November 2000 and 4 December 2000 when the applicant, Ms Artinos, was employed by the respondent, Stuart Reid Pty Limited. The complaint lodged with HREOC was that shortly after commencing her brief employment Ms Artinos queried her rate of pay and conditions of employment with the company's managing director, Mr Reid. She claimed that Mr Reid told her that she was young and had no real experience and that her colleague, Ms Marco, was married with children. She claimed that this amounts to discrimination on the basis of her marital status under the Sex Discrimination Act 1984 (Cth) (“the SDA”) and her age under the HREOC Act, taking into account that the events took place prior to the enactment of the Age Discrimination Act 2004 (Cth) (“the ADA”). In addition, Ms Artinos alleged that on one occasion each Mr Reid and Ms Marco mentioned Mr Reid's alleged practice of shaving his pubic hair from his genitals and that this amounted to sexual harassment under the SDA because she felt embarrassed and offended by those comments.
Ms Artinos also named Mr Reid's wife, Vanessa Reid, as a respondent to her complaint, apparently, on the basis of alleged defamation of character, but she did not include any allegations of unlawful discrimination against Mrs Reid. Because no complaint of unlawful discrimination was made the president declined to accept the complaint against Mrs Reid and no complaint against her has been terminated.
When the matter first came before me on 20 April 2007, I made a number of procedural orders. In particular, I ordered Ms Artinos to file and serve any amended application, points of claim and any additional evidence in support of her application on or before 12 June 2007.
I also directed the respondent to file and serve a response or any interlocutory application on or before 26 June 2007.
Ms Artinos did attempt to amend her application to join Mrs Reid. I refused that motion on the basis that the Court could not deal with the claim of defamation against Mrs Reid under the Court's associated or accrued jurisdiction. The allegations against Mrs Reid related to comments by her after the cessation of Ms Artinos's employment. The alleged comments were made or commenced in about 2001. Ms Artinos has not otherwise amended or clarified her application. She has filed additional affidavit evidence. She has also presented other documents.
I note that following the termination of her complaint Ms Artinos complained to the New South Wales Ombudsman about Legal Aid New South Wales which had, apparently, been assisting her in relation to her complaint before HREOC. I also note that Ms Artinos complained to the New South Wales Ombudsman about HREOC.
The present motion on its face appears to take issue with the form of the application seeks and to have it struck out or dismissed. The matter has since been clarified both in writing to Ms Artinos and orally to the Court. The respondent's motion is that the application should be dismissed summarily as having no reasonable prospect of success pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The motion is supported by the affidavit of Mary Ellen Horvath, sworn on 25 June 2007 and filed the following day. That affidavit notes asserted inadequacies of pleadings and evidence, the background to the HREOC complaint, and the conduct of these proceedings. Essentially, the respondent's position is that it cannot properly respond to the application in its present state, that Ms Artinos has been given a sufficient opportunity to amend and file additional evidence, and that in the absence of action to put the application in a fit state to hear, it is doomed to fail and should be dismissed summarily.
The motion is opposed by Ms Artinos who, in opposing the motion, relies upon her affidavit made on 10 July 2007 and filed the following day. Attached to that are a number of documents, some handwritten by Ms Artinos, some copies of documents already filed in the matter, and importantly, a letter of advice from Clayton Utz Solicitors to Ms Artinos, dated 20 June 2007. Following a failed attempt at mediation, the Court had referred Ms Artinos to Mr David Hillard of Clayton Utz for advice on a pro bono basis. The letter dated 20 June 2007 is a statement of that advice. I cautioned Ms Artinos that by disclosing the advice she was waiving privilege in it. She elected, nevertheless, to waive that privilege and present the letter of advice with the other documents annexed to her affidavit.
In substance, the advice from Mr Hillard was that Ms Artinos should not take this matter through to a final hearing and that his firm would not be prepared to represent her at such a hearing. Mr Hillard advised that, on the basis of Ms Artinos's assertions there might, hypothetically, be a claim of sexual harassment in breach of s.28B of the SDA. However, the crucial issue in relation to these proceedings would be whether the allegation could be proven. Mr Hillard saw no real prospect of success in relation to the claim of marital status discrimination and noted that the claim of age discrimination was unlikely to succeed, among other things, because the ADA was enacted well after the alleged events.
Both parties made oral submissions this morning in relation to the motion. Ms Horvath, for the respondent, drew attention to the fact that the employment of Ms Artinos was in the year 2000 and that there appeared to be a limitation point under State law. I ruled that the only relevant limitation period in relation to proceedings under the HREOC Act is the 28 day limitation period under that Act[1] which appeared to be have been met. Nevertheless, the passage of time since critical conversations were alleged to have occurred would be a factor bearing upon the prospects of success of the application by Ms Artinos. Ms Horvath also submits that the available material leads inevitably to the conclusion that there is no reasonable prospect of success in relation to any of Ms Artinos' claims.
[1] Section 46PO(2) of the HREOC Act.
No response has to this point been filed by the respondent and no evidence has been filed on its behalf. However, I understand from what Ms Horvath said at the bar table that Mr Reid and Ms Marco would be available to give evidence if that were required at a trial of the matter.
In her submissions, Ms Artinos stressed the truth of her allegations and her concern about the events that occurred both during her employment and following it. In relation to the latter, Ms Artinos said that she probably would not have made her complaint to HREOC and brought the present proceedings were it not for the alleged defamation of her by Mrs Reid after she left the employment of the respondent. I also note that in her affidavit material filed on 11 July 2007 Ms Artinos refers to a number of matters beyond the scope of these proceedings. She refers to matters relating to her personal life and other employment. I note that Ms Artinos says that following consultation with her general practitioner in 2006 she recalled memories which had been forgotten of sexual harassment and sexual assault when she was a teenager.
Under the general law, the Court must be cautious before dismissing an application on the basis that it has no reasonable prospect of success. In Rana v University of South Australia (2004) 136 FCR 244 at [78] and [79] his Honour Lander J said that it was not appropriate on an application such as the present motion to make any determination of the facts. Further in Penhall-Jones v State of New South Wales [2006] FCA 934, the Federal Court cautioned against an assessment on a summary dismissal application of evidence that would be presented on a trial of a claim but also cautioned that, in dealing with summary dismissal, the Court must give sufficient reasons for the dismissal so that the dismissal is properly understood by the parties.
The operation of the Federal Magistrates Court Rules is now subject to s.17A of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”):
(1)The Federal Magistrates Court 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 prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Magistrates Court 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.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.
I dealt with the general principles concerning s.17A in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Limited & Ors [2007] FMCA at 157. In particular, at [30] of that judgment I nominated the following principles applicable to a consideration of summary judgment or dismissal pursuant to s.17A and the Federal Magistrates Court Rules. They are:
· In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
· There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
· Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
· Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
· The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.
In its present state the application must necessarily fail in part. The Court cannot deal with the alleged defamation of Ms Artinos by Mrs Vanessa Reid. If Ms Artinos wishes to pursue that matter she will need to take action in a State court. Neither can the Court deal with the claim of underpayment of wages. The Court does have jurisdiction under the Workplace Relations Act 1996 (Cth) but the Court's jurisdiction is subject to that Act. The Court cannot deal with the industrial claim under the HREOC Act in the absence of any relevant claim of unlawful discrimination.
Ms Artinos does claim that she was under paid by reason of her marital status (single) and her age. However, the claim is supported only by a single alleged comment by Mr Reid that Ms Artinos was paid less than Ms Marco on account of her youth and inexperience, with an additional comment (which may have had no connection to salary) that Ms Marco was married. In my view, that claim has no prospect of success.
The main issue in the case is the claim of sexual harassment. Comments are alleged by Mr Reid and Ms Marco which hypothetically might support the claim of sexual harassment. As against that, the alleged conversations occurred almost seven years ago. The Court would need to be satisfied that the alleged words were said and were said in a context and with consequences that gave rise to a real claim of sexual harassment.
It is troubling that Ms Artinos discloses a motivation which is apparently based significantly on the alleged defamation of her by Mr Reid's wife after the cessation of her employment. I am also troubled that Ms Artinos exhibits, at least to some extent, a disturbed mind and allegedly has memories which were lost and have recently been recovered, admittedly in relation to unrelated circumstances.
I do not rule out the possibility that if this matter went to a trial, and evidence was given by Mr Reid and Ms Marco, that something might be elicited from them under cross-examination to support Ms Artinos' allegations. However, in my view, that possibility is sufficiently remote as to be discounted. The alleged events occurred too long ago for the Court to be confident about what was said. There is no present corroboration of Ms Artinos’ evidence and none is likely to emerge.
In my view, and consistently with the advice that Ms Artinos has received from her pro bono legal adviser, this matter ought not to proceed to a final hearing because the Ms Artinos has no reasonable prospect of successfully prosecuting the proceedings.
Accordingly, I dismiss the application summarily pursuant to s.17A of the Federal Magistrates Act and rule 13.10(a) of the Federal Magistrates Court Rules.
The application, having been dismissed summarily, costs should follow the event. I am told by Ms Horvath that the respondent's costs are in the vicinity of $9,000 and that on a party and party basis the respondent seeks costs of between $6,000 and $6,500. Under the Federal Magistrate Court's scale the respondent would receive costs for stage 1, stage 2, and stage 4 of the proceeding. Those costs would amount to $6,460 under the scale. Ms Artinos did not wish to be heard on costs. I see no reason to depart from the Court scale in this matter. Rather than simply make an order that costs be payable pursuant to the scale, however, and in order to eliminate the risk that the parties may have to return to Court to have the precise amount of costs resolved, I will fix costs in a specific amount. I will order that the applicant pay the respondents costs and disbursements of and incidental to the application fixed in the sum of $6,460.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 July 2007
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