FEDERAL COURT OF AUSTRALIA
Bishnoi v Star Track Express Pty Ltd [2024] FCA 808
File number(s): VID 561 of 2023 Judgment of: NESKOVCIN J Date of judgment: 24 July 2024 Catchwords: PRACTICE AND PROCEDURE – summary judgment application – strike out application – whether there are reasonable prospects of success – real questions of law and fact that should be decided at trial Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A(2), 37M
Sex Discrimination Act 1984 (Cth) s 4, 5(2), s 5(3) 14(2)(b), 14(2)(d), 16, 106
Federal Court Rules 2011 (Cth) rr 16.21, 26.01(1)
Cases cited: Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; 293 FCR 330
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256
Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting [2022] HCA 1; 275 CLR 165
Damevski v Giudice (2003) FCAFC 252;133 FCR 438
Danthanarayana v Commonwealth of Australia (No 2) [2016] FCAFC 114
Delpachitra v University of Technology Sydney [2022] FCA 22
Hollis v Vabu [2001] HCA 44; 207 CLR 21
Murphy v Chapple [2022] FCAFC 165
Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808
Ryan v Commissioner of Police [2022] FCAFC 36; 290 FCR 369
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118
Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1
Von Schoeler v Allen Taylor and Company Ltd and Others (No 2) [2020] FCAFC 13; 273 FCR 189
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: 5 July 2024 Counsel for the Applicant Mr M Harding SC with Ms G Cafarella Solicitor for the Applicant Victoria Legal Aid Counsel for the First Respondent Ms K Edwards Solicitor for the Second Respondent Mr R Dalal of ASKY International Lawyers Counsel for the Third Respondent Mr A Clayton-Greene Solicitor for the Third Respondent Regal Lawyers Solicitor for the Fourth and Fifth Respondents Mr I Warraich of Huk Legal Services ORDERS
VID 561 of 2023 BETWEEN: ANANYA BISHNOI
Applicant
AND: STAR TRACK EXPRESS PTY LTD TRADING AS STARTRACK (and others named in the schedule)
First Respondent
ORDER MADE BY:
NESKOVCIN J
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 20(a), 20(b)(ii), 21(a), 21(b)(iii), 22(a), 23(a), 23(b)(iii), 24(a), 25(a), 25(b)(iii), 26(a), 27(a), 27(b)(iii), 28(a), 33(b), 33(c)(ii), 35(c)(ii), 40(b), 40(c)(ii), 42(c)(ii), 47(b), 47(c)(iii), 49(c)(iii), 54(b), 54(c)(ii), 56(c)(ii), 61(b), 61(c)(iii), 63(c)(iii), 69(b), 69(c)(iii), 71(c)(iv), 76(b), 76(c)(ii), 78(c)(ii), 83(b), 83(c)(iii), 85(c)(iii), 90(b), 90(c)(ii), 92(c)(ii), 97(b), 97(c)(ii), 99(c)(ii) 104(b), 104(c)(ii) 106(c)(ii), 107, 110(b) and 111(b) of the statement of claim dated 16 February 2024 are struck out.
2.The…
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- Case
- [2024] FCA 808
- Decision Date
CaseChat Overview and Summary
The court had to decide whether Ms Bishnoi's claims were sufficiently pleaded to warrant a trial, particularly in light of a motion for summary judgment and a strike-out application filed by Star Track. The key issues included whether Ms Bishnoi's allegations of detriment and discrimination were adequately supported by facts and whether the pleadings were clear enough to inform Star Track of the specific claims against it. Additionally, the court needed to determine if there were real questions of law and fact that should be decided at trial.
The court found that while Ms Bishnoi's claim should not be summarily dismissed, there were deficiencies in her pleadings that needed to be addressed. The court struck out certain parts of the Statement of Claim that were insufficiently clear about the specific detriments Ms Bishnoi alleged and the actions of Star Track that constituted these detriments. The court granted Ms Bishnoi leave to re-plead, allowing her to amend her statement of claim to include the necessary details. The court also noted that the meaning of "agent" under the Sex Discrimination Act was not confined by common law agency and could be broader, impacting the vicarious liability claim. The court ordered specific parts of the Statement of Claim to be struck out and gave Ms Bishnoi until a specified date to file an amended statement of claim. Additionally, the parties were required to submit costs submissions by a certain date.
Orders
Orders of the court
1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 20(a), 20(b)(ii), 21(a), 21(b)(iii), 22(a), 23(a), 23(b)(iii), 24(a), 25(a), 25(b)(iii), 26(a), 27(a), 27(b)(iii), 28(a), 33(b), 33(c)(ii), 35(c)(ii), 40(b), 40(c)(ii), 42(c)(ii), 47(b), 47(c)(iii), 49(c)(iii), 54(b), 54(c)(ii), 56(c)(ii), 61(b), 61(c)(iii), 63(c)(iii), 69(b), 69(c)(iii), 71(c)(iv), 76(b), 76(c)(ii), 78(c)(ii), 83(b), 83(c)(iii), 85(c)(iii), 90(b), 90(c)(ii), 92(c)(ii), 97(b), 97(c)(ii), 99(c)(ii) 104(b), 104(c)(ii) 106(c)(ii), 107, 110(b) and 111(b) of the statement of claim dated 16 February 2024 are struck out.
2. The applicant has leave to file and serve an amended statement of claim that conforms with the reasons for judgment given on 24 July 2024 by 4.00pm on 21 August 2024.
3. On or before 4:00pm on 7 August 2024, the parties file and serve submissions as to costs of the first respondent’s interlocutory application filed on 18 March 2024, limited to five pages.
4. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Star Track further submitted that Ms Bishnoi’s claim of indirect discrimination against a ‘contract worker’ is deficient in that it fails to plead material facts concerning the conduct of Star Track which Ms Bishnoi seeks to impugn.CONSIDERATION Counsel for Ms Bishnoi stated that, at present, Ms Bishnoi relies solely on s 106(1)(b) of the Sex Discrimination Act to seek relief against Star Track for the alleged unlawful sexual harassment by the Individual Respondents. As a result, it is unnecessary to decide whether s 106(1) of the Sex Discrimination Act excludes the common law test for vicarious liability. For s 106(1) to apply, it is necessary for the person alleging an act of unlawful sexual harassment to prove that: first, the unlawful act was done; second, the person who did the unlawful act was an employee or agent; and, third, the unlawful act was done in connection with the employment of the employee or duties of the agent: Von Schoeler v Allen Taylor and Company Ltd and Others (No 2) [2020] FCAFC 13; 273 FCR 189 at [59]. For the purposes of this application, the meaning of “agent” and “employment”, and the cognate term “employee”, are relevant. The term “agent” is not defined in the Sex Discrimination Act. Counsel for Ms Bishnoi submitted that the concept of agency is not confined by common law agency. Ms Bishnoi relied on Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; 293 FCR 330 where O’Bryan J stated at [192] – [193] (Besanko and Lee JJ agreeing, [1] and [2]):At common law, the core conception of agency is “an authority or capacity in one person to create legal relations between the person occupying the position of principal and third parties”: International Harvester Co of Australia Pty Ltd v Carrigan’s HazeldenePastoral Co (1958) 100 CLR 644 at 652 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. That core conception has also been stated in broader terms as encompassing the authority to affect legal rights as between the principal and third parties (Petersen v Moloney (1951) 84 CLR 91 at 94 per Dixon, Fullagar and Kitto JJ) and the authority to act on behalf of a principal either generally or in respect of some particular act or matter (Erikson v Carr (1945) 46 SR (NSW) 9 at 12 per Jordan CJ). As explained in G E Dal Pont, Law of Agency (4th Ed, LexisNexis, 2020) at [1.4]:… agency relationships necessarily involve an agent acting in a representative capacity for the principal, whether for the purpose of creating contractual relations for the principal or to represent the principal in a more restricted ambit. Put another way, if the right by virtue of which the alleged agent acts is an independent right he or she already possessed, then he or she is not an agent; if it is, conversely, by virtue of some authority from another, then he or she is an agent.In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 (Tonto), Allsop P (with whom Bathurst CJ and Campbell JA agreed) explained (at [177], references omitted):… Not every independent contractor performing a task for, or for the benefit of, a party will be an agent, and so identified as it, or as representing it, and its interests. Agency is a consensual relationship, generally (if not always) bearing a fiduciary character, in which by its terms A acts on behalf of (and in the interests of) P and with a necessary degree of control requisite for the purpose of the role. Central is the conception of identity or representation of the principal … Examples and contexts may be infinite, and any arrangement must be understood and characterised by reference to its legal terms in context. …