Bender v Bovis Lend Lease Pty Ltd - [2003] FMCA 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENDER v BOVIS LEND LEASE PTY LTD

[2003] FMCA 277

HUMAN RIGHTS – Sex Discrimination Act 1984 – interim application.

PRACTICE AND PROCEDURE – Whether Court has power to strike out paragraphs of supporting affidavit – whether a party can rely upon statements made at a conciliation hearing before the Human Rights Commission – objection to matters raised in affidavit which were not the same or substantially the same as the acts, omissions or practices that were the subject of the terminated complaint – meaning of ‘privacy’ – relevance of privacy to conciliation conference – s.46PK(2) of HREOC Act.

Sex Discrimination Act 1984
Human Rights and Equal Opportunity Commission Act 1986, ss.46PA, 46P(1), 46PH(1)(I), 46PK(2), 46PO(3), 46PS(2)

Disability Discrimination Act 1992

Federal Magistrates Court Rules 2001, R4, 4.05(1), 10.01(3)

Travers v State of New South Wales [2000] FCA 1565 (3 November 2000)
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
Miller v Wertheim & Anor [2001] FMCA 103 (14 November 2001)
Wiggin v Edwards (1973) 1 ALR 497
Field v Commissioner of Railways for New South Wales (1957) 99 CLR 285

Applicant:

HELEN BENDER

Respondent:

BOVIS LEND LEASE PTY LTD

File No:

WZ 270 of 2002

Delivered on:

9 July 2003
(by audio link to Perth and Brisbane)

Delivered at:

Melbourne

Hearing Date:

13 March 2003 (by video link)

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Ms A Crichton-Browne

Solicitors for the Applicant:

Julian Johnson Lawyers

Solicitor for the Respondent:

Ms G Dann

Solicitors for the Respondent:

Freehills

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 270 of 2002

HELEN BENDER

Applicant

And

BOVIS LEND LEASE PTY LTD

Respondent

RULING

In an application filed 30 December 2002 by Helen Bender (the Applicant) a claim is made against Bovis Lend Lease Pty Ltd (the Respondent) pursuant to the Sex Discrimination Act 1984 (the SDA). The Applicant has relied upon an affidavit sworn by her on 27 December 2002 (the Applicant’s affidavit).
The Applicant had made a claim to the Human Rights and Equal Opportunity Commission (HREOC) alleging sex discrimination, sexual harassment and victimisation in breach of the SDA.
The complaint was the subject of a Notice of Termination dated

29 November 2002. The original complaint referred to as Attachment B
sets out details of the complaints. The Court has received a complete copy of the Respondent’s Response to the complaint which had been filed with HREOC. It is noted that HREOC terminated the complaint pursuant to s.46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act).
The application currently before the Court relates to interim orders sought by the Respondent in its Response filed on 28 January 2003. In the Response, apart from seeking orders that the Application be dismissed and that the Applicant pay the Respondent’s costs, the Respondent further claims the following interim orders:-
“The matters in paragraphs 10-18, 37-45, 66-67, 68-70 and 84-86 of the affidavit of Helen Louise Bender sworn 27 December…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bender v Bovis Lend Lease Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] FMCA 277
Decision Date: 9 July 2003 (by audio link to Perth and Brisbane)

CaseChat Overview and Summary

The Federal Magistrates Court of Australia was asked to decide on an application filed by Helen Bender against Bovis Lend Lease Pty Ltd under the Sex Discrimination Act 1984. Bender alleged she had been subjected to sexual harassment and discrimination in her employment as an on-site engineer with the company. The primary legal issues in the case were whether the Court had the power to strike out certain paragraphs of Bender's affidavit and whether she could rely on statements made during a conciliation hearing before the Human Rights and Equal Opportunity Commission (HREOC). Additionally, the Court needed to determine the relevance of privacy to the conciliation conference and whether the objected paragraphs in Bender's affidavit conformed to the statutory requirements.

The Federal Magistrates Court determined that it did have the power to strike out parts of an affidavit in human rights claims to ensure compliance with s.46PO(3) of the HREOC Act. The Court held that it was within its discretion to identify and remove issues that contravened the statutory requirements at an early stage of the proceedings. The Court also ruled that statements made at a compulsory conciliation conference could not be relied upon in subsequent court hearings, as it would undermine the intent and spirit of the HREOC Act.

Regarding the objected paragraphs in Bender's affidavit, the Court ruled that some paragraphs should be struck out, while others should remain. The Court found that the allegations of failure to provide female toilets and the long pants incident were in substance the same as the terminated complaint before HREOC and thus should remain. However, the allegations of hiring a stripper and pornographic material in subcontractors' offices did not have a sufficient nexus to the terminated complaint and were therefore struck out. The Court's ruling allowed the case to proceed with the remaining relevant allegations while ensuring compliance with the statutory requirements of the HREOC Act.

Orders