Bishnoi v Star Track Express Pty Ltd

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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

KTC v David [2022] FCAFC 60

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

Workpac v Rossato [2021] HCA 23; 271 CLR 456

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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Details
Case
[2024] FCA 808
Decision Date

CaseChat Overview and Summary

Bishnoi v Star Track Express Pty Ltd involved a claim by Ms Bishnoi against Star Track Express, alleging discrimination and unlawful sexual harassment under the Sex Discrimination Act. Ms Bishnoi sought relief for discrimination and harassment she experienced during her employment, which she claimed was perpetrated by certain individual respondents and Star Track itself. The case was before the Federal Court of Australia, where the primary focus was on the sufficiency of the pleadings and the potential for the case to proceed to trial.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly, in relation to the allegation of contravention of s 16(d) of the Sex Discrimination Act, Star Track submitted that the pleading and particulars do not demonstrate a “detriment” to which Ms Bishnoi was subjected by the actions of Star Track. Star Track submitted the alleged detriment was the result of a decision made by Ms Bishnoi to end her contract with Gurdezi and was not a detriment imposed by Star Track. I accept that the Statement of Claim should state Ms Bishnoi’s case with sufficient clarity to enable Star Track to know the case that is asserted against it and should identify the matters relied upon by Ms Bishnoi to allege a detriment imposed by Star Track. I would therefore strike out the relevant part of the Statement of Claim and grant leave to Ms Bishnoi to re-plead.CONCLUSION In my view, Ms Bishnoi’s claim should not be summarily dismissed. However, I would strike out the parts of the pleadings which are deficient for the reasons set out above and grant leave to Ms Bishnoi to re-plead.

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. …