Bunning v Centacare
[2015] FCCA 280
•11 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUNNING v CENTACARE | [2015] FCCA 280 |
| Catchwords: HUMAN RIGHTS – Sex discrimination. |
| Legislation: Sex Discrimination Act 1984 (Cth), s.4 |
Article:
An Introduction to the Jurisdiction of the Federal Court of Australia- Allsop J
| Spencer & The Commonwealth of Australia (2010) 241 CLR 118 King v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 |
| Applicant: | SUSAN BUNNING |
| Respondent: | THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE |
| File Number: | BRG 896 of 2014 |
| Judgment of: | Judge Vasta |
| Hearing date: | 28 January 2015 |
| Date of Last Submission: | 3 February 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 11 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.C. Dwyer |
| Solicitors for the Applicant: | M + K Lawyers |
| Solicitors for the Respondent: | Minter Ellison Lawyers |
ORDERS
That the Respondent’s application for summary dismissal be granted.
That the Initiating Application filed on 13 October 2014 be dismissed.
That the parties be at liberty to apply in relation to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 896 of 2014
| SUSAN BUNNING |
Applicant
And
| THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE |
Respondent
REASONS FOR JUDGMENT
Introduction
This action is brought by the Respondent, who seeks summary dismissal of the application filed by the Applicant on 13 October 2014.
That application alleged unlawful discrimination against the Applicant by the Respondent, who had been her employer. The grounds of this application were contained in a statement of claim also filed on 13 October 2014.
The orders and relief sought by the Applicant are contained in paragraph 28 of the Statement of Claim and are as follows:
“28. The Applicant seeks the following orders against the Respondent:
(a) A declaration that the Respondent has contravened Sections 14 and 5A of the SDA in that the Respondent unlawful discrimination [sic] against the Applicant by dismissing her from her employment;
(b) further, or in the alternative, a declaration that the Respondent has contravened Sections 14 and 5A of the SDA in that the Respondent unlawfully discriminated against the Applicant by imposing, a condition, requirement, or practice that has, or was likely to have, the effect of disadvantaging persons who have the same sexual orientation as the Applicant, in circumstances which were not reasonable;
(c) Further or in the alternative, a declaration that the Respondent has contravened Sections 14(2)(d) and 5A of the SDA in that the Respondent unlawfully discriminated against the Applicant by subjecting her to a detriment in her employment;
(d) An order that the Respondent pay the Applicant compensation for the loss and damage suffered by the Applicant because of the Respondent’s contraventions referred to in paragraphs 28(a) to (c) hereof;
(e) A declaration that the Respondent breached the Implied Reasonable Notice term of the Applicant’s Employment Contract, thereby wrongfully dismissing the Applicant;
(f) An order for damages for the loss and damage suffered by the Applicant as a result of the Respondent’s wrongful dismissal of the Applicant’s employment;
(g) Interest on any such amount ordered;
(h) Costs.
Brief Chronology
On 6 August 2007, the Applicant began employment with the Respondent as a Co-ordinator, Family Support, for Centacare (Centacare is a service run by the Respondent). On or about 28 May 2009, the Applicant accepted an offer to be employed as a Clinical Practice Co-ordinator with Centacare. On 5 August 2013, the Applicant was asked to attend an urgent meeting because of complaints made about her. Details of that meeting vary somewhat, but it is clear that as a result of that meeting, the Applicant’s employment was immediately terminated. She was paid five weeks wages upon termination.
On 22 August 2013, the Applicant commenced proceedings for unfair dismissal with the Fair Work Commission. In paragraph 2 of that application, it reads:
“What were the reasons for dismissal, if any, given by your employer?
(a) The Applicant was terminated by the Respondent for gross misconduct, namely, bringing the Respondent into disrepute.
(b) The Applicant did not receive written reasons for her termination.”
The next question:
“Why was the dismissal unfair?
(a) The Applicant’s dismissal was unfair because:
(i) There was no valid reason for the termination of her employment; and
(ii) She was not afforded procedural fairness in the termination process.”
On 15 November 2013, the Applicant discontinued that application before the Fair Work Commission. Why that course of action was taken is not evident on the material before me but, in any event, the reason that the matter was discontinued is irrelevant for these purposes.
By complaint signed and dated 15 November 2013, the Applicant referred her dismissal to the Australian Human Rights Commission (AHRC). That complaint stated, in a box that was ticked:
“I have been discriminated against because of my sex.”
Then, further details were provided under the heading “What happened?”:
“The Applicant commenced employment with the Respondent on or around 6 August 2007 as Counselling Coordinator. She worked in that capacity for a few of [sic] years, before working for about a year as a Senior Practitioner. For the last few years and immediately prior to the termination of her employment, the Applicant worked as the Coordinator of Family Support.
On 5 August 2013, the Applicant’s employment was terminated by Centacare due to her contact details as a counsellor at Centacare being published on a website for the Brisbane Poly Group. These details had been originally published in or around late 2011, or early 2012, following a request from the group for the contact details of a ‘poly-friendly’ counsellor. The Brisbane Poly Group is a group of people involved and/or interested in the polyamorous lifestyle.
On the morning of 5 August 2013, the Applicant met with Ms Christine Hodge and Ms Robyn Grove, at which time Ms Christine Hodge advised the Applicant that a complaint about her had been received by Mr Peter Minelli of the Vicar-General’s Office. Ms Hodge stated that the complaint raised six (6) or seven (7) issues regarding serious misconduct. The Applicant had no prior notice of the meeting, or the issues to be raised. Furthermore, she was not ‘invited’ to attend the relevant meeting; she was told by Ms Grove that Ms Hodge was looking for her. After locating Ms Hodge, the abovementioned complaint was raised with the Applicant. Ms Grove was also present when the complaint was raised.
During the meeting:
1. The Applicant was afforded a limited opportunity to respond to the allegations, particularly given the contact had taken some place some time ago;
2. The Applicant was not afforded the opportunity to have a support person present;
3. The Applicant was not allowed a reasonable period of time to reflect upon the events raised in the meeting and prepare a response;
4. The Applicant was not advised of the other ‘issues’ which were said to constitute serious misconduct.
5. The Applicant was not advised who had lodged the complaint against her;
6. Ms Hodge and/or Ms Grove:
a. Asked the Applicant whether she had previously attended upon the Brisbane Poly Group for professional or personal reasons;
b. Asked the Applicant whether she was a member of the Brisbane Poly Group, and showed her a printout of members which listed her name at the bottom;
c. Asked the Applicant why she was a member of the Brisbane Poly Group;
d. Discussed the Brisbane Poly Group being against the ethics and moral teachings of the Catholic Church; and
e. Mentioned that some members of staff working for Centacare had lifestyles which potentially were in conflict with the Church’s teachings.
The Respondent’s conduct prior to and during the meeting is inconsistent with the manner in which it has treated other employees accused of serious misconduct. The Applicant contends that she was treated in a discriminatory manner due to her involvement and/or perceived involvement in the Brisbane Poly Group.”
On 28 February 2014, the Respondent made submissions to the Australian Human Rights Commission. On 14 August 2014, the Delegate of the President of the Australian Human Rights Commission decided the proceedings should be terminated. That Delegate did so by way of a Notice of Termination. The Notice reads,
“This complaint alleging unlawful discrimination under the Sex Discrimination Act 1984 (Cth) has been terminated under section 46PH(1)(c) of the AHRCA on the ground that I am satisfied that the complaint is misconceived.
Reasons for this decision are provided in Attachment A.
A copy of the complaint is provided at Attachment B,
Dated this 14th day of August 2014
Tracey Raymond
Delegate of the President”
In the correspondence, the Australian Human Rights Commission said, under a heading “Possible Further Action”:
The AHRCA says that after a complaint is terminated, the complainant may make an application to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) alleging unlawful discrimination by the respondent to the terminated complaint. Information about the court or the court process is available from a court registry or from their respective websites…
If Ms Bunning applies to the FCCA or the FCA, she will need to attach the following documents to her application:
…
Ms Bunning must apply to the FCCA or the FCA within sixty (60) days of the date on the Notice of Termination.”
This leads us to the present application.
Statement of Claim and the rival contentions
The Statement of Claim states, at paragraph 11:
“11. On or about 5 August 2013, the Respondent terminated the Applicant’s employment with immediate effect.
Particulars:
(a) On 5 August 2013, the Respondent requested that the Applicant attend a [sic] urgent meeting regarding a complaint made against her to the Vicar - General’s Office;
(b) The Applicant subsequently met with Christine Hodge and Robyn Grove on behalf of the Respondent;
(c) The Applicant was told that six (6) or seven (7) complaints had been made against her regarding issues of serious misconduct;
(d) During the meeting the Applicant was asked:
(i) Whether she had previously attended upon the ‘Brisbane Poly Group’ for professional or personal reasons;
(ii) Whether she was a member of the ‘Brisbane Poly Group’. Ms Hodge and Ms Grove then proceeded to show the Applicant a printout of members, which listed the Applicant’s name; and
(iii) Why she was a member of the ‘Brisbane Poly Group’.
(e) Furthermore, during the meeting the Applicant was told that the ‘Brisbane Poly Group’ goes against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.
(f) The Applicant was told that she was to be dismissed instantly for gross misconduct.
12. The Respondent subsequently paid the equivalent of five (5)weeks’ notice to the Applicant.
Further at paragraph 18 the Statement of Claim states,
“18. At all material times, the Applicant was a person who was polyamorious [sic].”
Paragraph 20-23 of the statement of claim reads:
“20. For the reasons pleaded in paragraph 11 hereof, the Respondent has contravened Section 14 of the SDA.
Particulars:
(a) The Respondent knew that the Applicant was polyamorious [sic];
(b) The Respondent terminated the Applicant’s employment because she is polyamorious [sic] and/or because of the characteristics that appertain generally to persons who are polyamorious [sic] and/or because of characteristics that are generally imputed to persons who are polyamorous;
(c) For the purposes of Section 5A and 14(2)(c) of the SDA, the termination was discrimination as it constituted less favourable treatment of the Applicant, in circumstances that are the same or are not materially different, that the Respondent treats or would treat a person who has a different sexual orientation.
21. Further, or in the alternative, the Respondent has unlawfully discriminated against the Applicant in contravention of Section 14 of the SDA in that it did imposed, or proposed to impose a condition, requirement or practice that has, or was likely to have, the effect of disadvantaging persons who have the same sexual orientation as the Applicant in circumstances which were not reasonable.
Particulars:
(a) The Respondent imposed or proposed to impose a condition, requirement or practice that those persons whose sexual orientation was that of polyamory could not be employed by the Respondent.” [sic]
“22. Further or in the alternative, the Respondent has contravened Section 14(2)(d) and 5A of the SDA by subjecting the Applicant to a detriment because of her sexual orientation, and/or because of the characteristics that appertain generally to persons with the sexual orientation and/or because of characteristics that are generally imputed to persons with these sexual orientations…”
23. In the premise, the Respondent has subjected the Applicant to less favourable treatment due to its actions referred to in paragraph 22(b) hereof than, in circumstances that are the same or are not materially different, the Respondent treats or would treat a person who has a different sexual orientation to the Applicants detriment.” [sic]
The Defence states, at paragraph 4(e) and 4(f),
“(e) Says that the Applicant’s employment was terminated summarily for serious misconduct, and, in this circumstance, she was not entitled to notice of termination at all.
Particulars:
(i) The Applicant caused the Respondent’s name and contact details to be posted on the ‘Brisbane Poly People’ website without the Respondent’s permission and without express authority to do so;
(ii) The Applicant’s conduct was in breach of the Respondent’s code of conduct and applicable policies and procedures;
(iii) The Applicant’s conduct displayed a serious lack of judgment so as to destroy the relationship of trust and confidence between the Applicant and the Respondent;
(iv) The Applicant’s conduct was wilful and deliberate behaviour inconsistent with the continuation of the contract of employment;
(f) Further says that notwithstanding that the Applicant was terminated summarily for serious misconduct, the Respondent did pay to the Applicant 5 weeks’ pay in lieu of notice.
Further at paragraph 7 the defence states:
“7. As to paragraph 11 of the Statement of Claim, the Respondent :
(a) admits the Respondent terminated the Applicant’s employment with immediate effect on 5 August 2013;
(b) say that the reason that the Applicant’s employment was terminated with immediate effect was that the Applicant admitted to allowing her name; the name of the Respondent and the Respondent’s contact details to be listed on an external website without having the Respondent’s permission and without express authority to do so, and that such conduct, in the reasonable opinion of the Respondent, amounted to serious misconduct;
(c) repeats and relies upon the matters pleaded at subparagraphs 4(d), 4(e)and 4(f) above; and
(d) otherwise says that it is not required to, and therefore does not plead to the particulars of paragraph 11 of the Statement of Claim.”
As noted in the Statement of Claim the Applicant also claims that there was a breach of a Reasonable Notice Term. Paragraph 7(d) of the Statement of Claim outlines the employment contract was:
“(d) that either party could terminate the Employment Contract by providing the other party with reasonable notice of the termination (‘Reasonable Notice Term’)
Particulars:
(i) the Reasonable Notice Term is implied by operation of law and implied by fact.”
Further, at paragraph 16 of the Statement of Claim, it reads:
“16. Reasonable notice was 12 months.
Particulars
The length of reasonable notice is calculated by refer [sic] to factors including:
1. the seniority and importance of the Applicant’s position;
2. the length of service of the Applicant;
3. the size of the Applicant’s remuneration;
4. the Applicant’s age;
5. the Applicant’s experience;
6. the Applicant’s job mobility;
7. the expected period it would take that Applicant to obtain alternative comparable employment; and
8. the period, but for the termination, the Applicant could have expected to remain in the employment.
17. By reason of the matters pleaded in paragraphs 11 and 12, the Respondent has refused or neglected to provide the Applicant with reasonable notice of the determination. Accordingly, the Respondent has breached the Reasonable Notice Term.”
The defence at paragraph 4(d) pleads:
(d) denies that it was a term of the letter of offer that either party could terminate by providing the other party with reasonable notice, as the letter contains no such term, and says that:
(i) by means of the operation of the Award and the Act, it was not necessary to specify a notice period in the letter of offer, to give efficacy to the letter of offer; and
(ii) if any entitlement to ‘reasonable notice’ did need to be implied in law or in fact into the letter of offer to give efficacy to it, the entitlement was 5 weeks.
Particulars
(A) As at August 2013, the Award relevantly stated that the notice of termination was provided for in the National Employment Standards under the Act;
(B) As at September 2013, the National Employment Standards under the Act relevantly entitled the Applicant to five weeks’ notice;
(C) The Applicant’s position was an award-covered clinical relationship counselling role;
(D) The Applicant’s position was not a senior management role.
(E) None of the Applicant’s age; qualifications; experience; length of service and/or professional standing, individually or together, gave rise to any entitlement to more than 5 weeks reasonable notice;
So there are essentially two claims here; a sex discrimination claim and a breach of contract.
In short compass the Applicant claims that she was dismissed because she was polyamorous and that a dismissal for that reason is unlawful. The applicant further claims that, in any event, that reasonable notice of 12 months should have been given.
In short compass, the Respondent claims that the Applicant was dismissed for gross misconduct. Further that there is no implied “Reasonable Notice Term” and that even if one could somehow come to the view that there was, such a term would not extend beyond five weeks.
These two contentions were confirmed by the representatives of the parties in the hearing before me.
Summary dismissal
In this application for summary dismissal the Court must look at whether there is, for the Applicant, “a reasonable prospect of success.” Section 17A of the Federal Circuit Court Act 1999 reads:-
“ 17A Summary judgment
(1)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 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 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.”
I note that the term, “reasonable prospect of success,” is a term that is used widely at common law and in such documents as Guidelines for Prosecution issued by Directors of Public Prosecutions. There is nothing within s.17A that derogates from the manner in which that phrase is widely used.
Rule 13.10 of the Federal Circuit Court Rules 2001 states:-
“Disposal by summary dismissal
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; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
It is only s.17A (2) and (3) and Rule 13.10(a) that apply to this matter.
Both counsel very helpfully referred me to Spencer & The Commonwealth of Australia (2010) 241 CLR 118. At paragraphs 59 and 60, the majority, when looking at the phrase “no reasonable prospect of success”, said:-
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or” faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by [s17A]. Nor can the content of the word “reasonable” in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The [Court] may exercise power [under s17A] if and only if satisfied 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 the 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.
In the joint judgement of French CJ and Gummow J, their Honours said at paragraphs 24 and 25:-
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought upon the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous, vexatious or an abuse of process…
[Section 17A] requires a practical judgement by the [Court] as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgement of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this court, the court hearing the application under the section could justifiably conclude the proceedings had no reasonable prospect of success.
When specifically looking at the present matter, what must firstly be established is that there is a cause of action that would enliven the jurisdiction of this Court. The Cause of Action claimed here is a breach of the Sex Discrimination Act 1984 (Cth).
The Applicant claims she was unlawfully discriminated against by the Respondent because of her sexual orientation, that is, because she was polyamorous. Therefore, the question that has to be answered to start with is whether polyamory is a sexual orientation. To my mind, this is a pure question of statutory interpretation.
Sexual Orientation
“Sexual orientation” is defined in the Sex Discrimination Act 1984 (Cth) at s.4 as:
“sexual orientation means a person’s sexual orientation towards:
(a) persons of the same sex; or
(b) persons of a different sex; or
(c) persons of the same sex and persons of a different sex.
By defining “sexual orientation” in this way, the legislature has confined the term to the words that are actually used. Orientation, in its dictionary meanings, is an “attraction to” or an “inclination towards”. The manner in which it has been defined by this legislature confines “sexual orientation” to the “orientation” towards persons of the same sex, persons of a different sex or to persons of the same sex and persons of a different sex. Therefore, the legislature has defined sexual orientation as a state of being.
Under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as “sexual behaviour”.
The standard behaviour may be seen as the monogamous relationship with someone of a compatible sexual orientation, but there are many deviations from that standard. Using the term coined by the DSM V, I would label these deviations as paraphilias. The prefix “para” is instructive, as it connotes something beyond the norm.
The Applicant in written submissions referred to an academic article written in the University of Cincinnati Law Review (Volume 79 issue 4 at page 14). That author of that article expressed the view that sexual orientation “should refer to any type of settled “sense of direction or relationship” or “choice or adjustment of associations, connections or dispositions” that relate to libidinal gratification. In other words, just about any sexual preference would appear to be covered by the term as a matter of ordinary meaning, provided it was abiding enough to constitute a “settled sense of personal direction” or a repeatedly chosen set of associations, connections or dispositions”.
However that definition is not the definition legislated in the Sex Discrimination Act 1984. It is clear that this author believes that behaviour is the determinant of sexual orientation. That plainly cannot be correct. The true situation is that sexual orientation is but one cause of behaviour.
In argument before me, the Applicant contends that “behaviour” is a “sub-set” of an orientation and therefore is covered by the definition in the Sex Discrimination Act 1984.
If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result would be an absurdity.
This is because sexual orientation is something far more than how one behaves sexually. Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 1984. This is because their behaviour does not define their orientation.
I am comforted in that conclusion somewhat by the consultation report of April 2011 entitled “Addressing Sexual Orientation and Sex and/or Gender Identity in Australia”, by the Australian Human Rights Commission, It is this report that led to the current definition of “sexual orientation” being adopted by the Legislature.
In that report at section 7.3, the AHRC details the submissions that were made to it by many parties. Many parties had said that protection under the Act should include attraction, identity and behaviour. At 7.3(b) of the report, located on page 23 and headed “Lawful sexual activity and HIV/AIDS status”, the report says:
“A number of participants suggested that ‘lawful sexual activity’ should be included in federal discrimination law as a protected ground of discrimination in addition to sexual orientation…”
To my mind, this is an illustration of what the legislation meant when defining “sexual orientation”. The fact that it was suggested to the legislature that it could look at the lawful sexual activity and specifically protect that under the Sex Discrimination Act 1984 (Cth) is instructive. The fact that the legislature did not legislate to protect sexual behaviour is also instructive. The fact that the Second Reading Speech to the Senate did not mention behaviour but spoke of sexual orientation as being “the way a person is” is also instructive.
In the end, I am led to the inexorable conclusion that “sexual orientation”, as the term is used in s. 4 of the Sex Discrimination Act 1984 (Cth), covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours.
Polyamory as a “sexual orientation”?
In my view, it is not possible to be polyamorous unless one engages in polyamory. Polyamory is a manifestation of the state of being that is a person’s particular sexual orientation. It is a “behaviour”, rather than a state of being.
The Australian Macquarie Dictionary defines the term “polyamory” as:
“The mating pattern of having a number of sexual partners at the same time”
The Australian Oxford Dictionary defines the term as:
“The practice of engaging in multiple sexual relationships with the consent of all the people involved.”
Therefore, one has to behave in a polyamorous way to be, in fact, polyamorous. It is not a state of being existing in and of itself. I am also comforted in this conclusion by the Applicant’s own statement in her application before the AHRC in which she characterises polyamory as a “lifestyle”.
In my view, polyamory is not a “sexual orientation” as defined by s.4 of the Sex Discrimination Act 1984.
It could never be shown by the Applicant that there has been “sexual discrimination” as understood by the Sex Discrimination Act 1984 (Cth). Therefore, in relation to that part of the Statement of Claim, there is no reasonable prospect of success (as that term is used in s.17A of the Federal Circuit Court Act 1999) because there is no Cause of Action.
Implied Reasonable Notice Term and Associated Jurisdiction
This leads me to the “Implied Term of Reasonable Notice” part of the Statement of Claim.
The Applicant in her written argument suggests that even if the Sex Discrimination Act 1984 (Cth) point is resolved in favour of the Respondent, this part of the Statement of Claim can be considered separately and still proceed before this Court. The Respondent agrees that it is a separate claim, but says that this claim is not within the original jurisdiction of the Federal Circuit Court as laid down by the Constitution.
Such a claim is founded in the common law. It is not a claim under a Federal law nor is it covered by Federal jurisdiction. It becomes able to be heard by this Court because of this Court’s “associated jurisdiction”. The “associated jurisdiction” comes from the initial claim under the Sex Discrimination Act 1984 (Cth). (See s.18 of FCCAA)
I have been referred to a number of authorities by the Respondent and by the Applicant. Those cases are:-
· Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543;
· New South Wales Department of Housing v Moskalev (2007) 158 FCR 206;
· Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
· Fencott and Others v Muller and Another (1983) 152 CLR 570
· Re Wakim; Ex parte McNally ( 1999) 198 CLR 511;
· Johnson Tiles Pty Ltd v Esso Australia Limited (2000) 104 FCR 564;
· Spencer v Commonwealth (2010) 241 CLR 118;
· General Steel Industries v Commissioner for Railways (1964) 112 CLR 125;
· Ball v Morgan & Anor [2001] FMCA 127;
· Fetherston v Peninsula Health (No.2) [2004] FMCA 594
· Genovese v BGC Construction Pty Ltd ( No.2) [2007] FMCA 601;
· Cann v Commonwealth Bank of Australia (No.6) [2011] FMCA 912
· Cate v International Flavours & Fragrances (Aust) Pty Ltd [2007] FMCA 36;
· Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
· Petrotimor Comphania de Petroleos SARL v Commonwealth of Australia [2003] FCFCA 82
I was also referred to an article by Allsop J (as he then was) published in 2007 Federal Judicial Scholarship titled “An Introduction to the Jurisdiction of the Federal Court of Australia”
I have also referred both parties to the matters of the King v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, and the judgment of Starke J at 465 and 466. I have also referred counsel to the matter of Wilson v Binderhoffer [2014] FCCA 2940, a judgment of Judge Cassidy.
I have had regard to all those authorities. To my mind, Allsop J summed up the state of the law when he said at page 23 of his article:
“When a right, as a part of a claim or defence, which is said to arise under a law of the Parliament, is put forward by the party, the assertion of the federal issue, not its disposition, and not its merit, attracts the jurisdiction of the court to the relevant matter of which the federal issue forms part”.
It would seem however, on the state of the authorities, that such a claim must be a justiciable claim (see Fencott v Muller (1983) 152 CLR 570). The Applicant argues that this is not necessarily the case. The applicant submits that one has to merely assert Federal jurisdiction for the associated jurisdiction to come to this Court.
The Applicant points to Unilan Holdings Pty Limited [1993] FCA 420. However, that judgement says little about the jurisdictional issue. One must look at the judgement at nisi prius ([1992] FCA 179).
On my reading of the matter, the jurisdictional issue was not raised. However, the claim for negligence was so intertwined with the claim of a breach of the Trade Practices Act1974 that it was really one in the same action. The statements made were said to be both breaches of the TPA and negligent. (I note that in the present matter, the common law action is something totally divorced from the action under the SDA.)
In my view, I cannot treat Uniland Holdings (supra) as authority for the proposition that merely asserting a claim of Federal jurisdiction, notwithstanding that such a claim is not justiciable, gives to the Court the associated jurisdiction under s.18 of the FCCAA. In my view, the judgement of Judge Cassidy in Wilson v Binderhoffer (supra) is a succinct analysis of the law and I agree with Her Honour’s reasoning.
Having found that the claim made pursuant to the Sex Discrimination Act 1984 (Cth) is not justiciable, I find that there is no jurisdiction for the Federal Circuit Court to hear the common law claim.
This means that the Applicant would have to commence proceedings in the District or Magistrates Court of Queensland if she wanted to pursue the common law claim.
It does not give me any pleasure to rule this way, but I must rule in a way consistent with what I feel the law is, and not what I would like it to be. I have commented to Counsel in the course of argument how unsatisfactory I feel this state of affairs is.
This Applicant has a grievance, no matter what the merits of that grievance are. She went to the Fair Work Commission. For whatever reason, she has abandoned that application and has then gone to the Human Rights Commission. That Commission has correctly said that it will not deal with the matter. She has then come to this Court and is being told, by me, that there is no cause of action as far as the Sexual Discrimination Act is concerned. She is now to be told that she must now go to another Court to prosecute her common law claim. No matter what the merits or the probability of success on the substantive claim, she should be allowed to at least ventilate her grievance. I would be disposed to hear the common law claim but, as I have ruled, I have no jurisdiction to do so.
To my mind, as unpalatable as it is for me, I must find that, because there is no jurisdiction for me to hear the Sex Discrimination claim, therefore, the jurisdiction for this Court to hear the claim on the implied term of Reasonable Notice does not exist.
Conclusion
I grant this present application by the Respondent and I dismiss the claim of the Applicant filed in this Court on 13 October 2014 in whole.
I order the Applicant pay the costs of the Respondent.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Vasta.
Date: 11 February 2015
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