Coady v Yachting Victoria Incorporated
[2017] FCCA 645
•5 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COADY v YACHTING VICTORIA INCORPORATED | [2017] FCCA 645 |
| Catchwords: HUMAN RIGHTS – Sex Discrimination in sport – Yachting regatta – father and female child in men’s yacht race – summary judgment – principles to be applied – application for summary judgment dismissed in part – whether respondent providing services for purposes of s.22(1) of the Sex Discrimination Act 1984 (Cth). |
| Legislation: Federal Circuit Court Act 1999 (Cth) s.17A Federal Circuit Court Rules 2001 r.13.10 Sex Discrimination Act 1984 (Cth) ss.5, 22(1), 42 |
| Cases cited: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 449 |
| Applicant: | STEPHANIE COADY |
| Respondent: | YACHTING VICTORIA INCORPORATED |
| File Number: | MLG 914 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 3 February 2017 |
| Date of Last Submission: | 3 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Neill |
| Solicitors for the Applicant: | Peter Hull & Associates |
| Counsel for the Respondent: | Mr McDougall |
| Solicitors for the Respondent: | M&K Lawyers Group Pty Ltd |
ORDERS
Paragraphs 12, 14(b) and (c), 16(a)(ii)(b) and (c), 18(a) and (b) of the points of claim be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules2001.
The applicant file and serve amended points of claim to give effect to this decision by 21 April 2017.
The respondent have leave to file a defence to the amended points of claim by 2 May 2017.
The applicant file affidavits that she intends to rely on as evidence in chief by 26 May 2017.
The respondent file any affidavits that it intends to rely upon as evidence in chief by 21 June 2017.
Notice of any expert evidence to be adduced by either party must be given by 18 July 2017 with the notice setting out the qualifications of the expert witness and an outline of the evidence to be given.
The applicant and respondent by their representatives confer for the purposes of preparing a jointly prepared document setting out an outline of issues to be determined by the Court and a statement of agreed facts.
The matter be fixed for hearing on 17 August 2017 at 10:00am with an estimated hearing time of 2 days.
The costs of the application to summarily dismiss the proceeding be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 914 of 2016
| STEPHANIE COADY |
Applicant
And
| YACHTING VICTORIA INCORPORATED |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent made an application pursuant to s.17A of the Federal Circuit Court Act 1999 (Cth) for summary dismissal, or in the alternative, that the proceeding be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
The application was heard on 3 February 2017.
Outline of Case
The applicant filed points of claim on 16 September 2016. The claim concerns the alleged conduct of the respondent towards the applicant at the ISAF Sailing World Cup Melbourne, which was held in Melbourne between 7 December 2014 and 14 December 2014 (‘the regatta’). Yachting Victoria Incorporated (‘Yachting Victoria’) was the organising authority for the event.
The applicant, who is female and was aged 16 at the time of the regatta, together with her father, Mr Coady, registered to compete in the “men’s 49er class” race at the regatta, which is conducted in a two person, high-performance dingy ‘49er class’ of yacht.
The Notice of Race stated that the regatta was to be conducted in accordance with the Notice of Race issued under the ISAF (now World Sailing) rules. The Notice of Race rules required the race to be conducted in a 49er class yacht, and to be sailed by two male persons. The event was an international event and ISAF points obtained by participants go towards consideration for Olympic selection.
The Notice of Race provided relevantly:
3.4 Competitors shall produce evidence of the appropriate class association at the time of registration as may be required by the organising authority.
3.5 Olympic gender requirements will apply for each Olympic class event.
3.6 Competitors under 18 years of age shall present a signed and completed parent (or guardian) consent and declaration form at registration…
3.8 The regatta is open to boats competing in events chosen for the 2016 Olympic Sailing Competition and the 2016 Paralympic Sailing Competition and IKA Kite Boards.
Under clause 3.8 of the Notice of Race, the events listed included: men's two-person dingy (high-performance) 49 class; and women's two-person dingy (high-performance) 49 class.
In registering to participate in the event, Mr Coady on behalf of the applicant, agreed to the terms and conditions of entry as contained in the Notice of Race.
On 8 December 2014, the applicant and Mr Coady participated in the men's 49 class race at the regatta but had to retire due to a broken spinnaker pole.
On 9 December 2014, the Principal Race Officer of the regatta, Mr Papantoniou told the applicant and Mr Coady that they were in violation of the Olympic gender requirements stated in the Notice of Race because the applicant was a female and they should not participate further in the regatta.
The applicant and her father continued to participate in the regatta for three further races on 9 December 2014, however she says that the officials of the respondent and members of the respondent's International Jury followed the boat in those events and her boat’s results were not recorded.
Acting on a report made to the World Sailing Principal Race Officer at the event, the World Sailing International Jury determined that the boat was ineligible to compete in the men’s 49er class as it was in breach of the Notice of Race rules 3.5 to 3.8. The World Sailing International Jury disqualified the applicant and Mr Coady from participating in races 4, 5 and 6 at the regatta.
At a subsequent hearing, the World Sailing International Jury excluded the Applicant and Mr Coady’s yacht from sailing at the regatta, annulled their scores from the races, and prevented World Sailing ranking points from accruing. Mr Coady was found to have committed gross misconduct, gross breach of the rules, exhibited bad manners, poor sportsmanship, and brought the sport into disrepute.
It is alleged by the applicant that the conduct of the respondent in following her boat on 9 December 2014 and excluding her from participation in the regatta on and after 9 December 2014 has caused her to be humiliated and intimidated. She felt publicly singled out, identified and shamed for participating in the regatta and she was verbally abused by other competitors in the sight and hearing of the respondent’s officials, which added to her distress and humiliation.
Under the particulars of the claim that she was humiliated by the respondent as a result of her being excluded from participating in the regatta, she says that her personal sail number was published by the respondent in the summary report of the respondent’s International Jury and displayed on a public noticeboard at the regatta office. Further, as the helm of her boat, the applicant was responsible for the asserted findings of the respondent’s International Jury against Mr Coady of gross misconduct, gross breach of the rules, bad manners, poor sportsmanship and poor conduct in competing in breach of the rules and this led to her humiliation.
The applicant claims that she has suffered “profound distress” by the respondent’s conduct and under the particulars of that allegation states that:
a)before the regatta the applicant was a promising sailor; and
b)since regatta the applicant:
i)has ceased to sale;
ii)has lost all motivation and enjoyment in sailing;
iii)has had difficulty concentrating in her final year of secondary schooling with detrimental mental effect on her academic performance;
iv)fears further online bullying and vilification; and
v)feels that she is disliked and rejected by her sport.
Outline of Submissions
The applicant alleges that the respondent unlawfully discriminated against her in breach of s.5 of the Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act’).
The applicant alleges that she was discriminated against by the respondent on the basis of her sex:
a)by virtue of the respondent following her boat at the race on 9 December 2014;
b)by the respondent’s deletion of her or her boat’s results;
c)by the respondent’s refusal to allow the applicant to further participate in the regatta on or after 9 December 2014;
d)by the respondent’s refusal to award ISAF ranking points to her or her boat for participation in the regatta; and
e)the rules of the race were fixed by the ISAF and not the respondent.
The respondent alleges that the applicant’s claim is hopeless, bound to fail, or in the alternative, has no reasonable prospects of success on the basis that:
a)Yachting Victoria does not provide goods or services or make a facility available for the purposes of s.22(1) of the Sex Discrimination Act;
b)even if it did, the applicant was not refused any goods, services or facilities on the basis of sex or the characteristic of any sex as it was the applicant’s boat and not the applicant who was excluded from further participation in the regatta;
c)the actions of which Ms Coady complains were all actions contemplated by the Notice of Race which Ms Coady agreed to abide by as a participant in the regatta, which apply to all sailors, regardless of sex or the characteristic of any sex;
d)the applicant was at all times permitted to continue in the regatta either in a mixed or women's class race; and
e)the rules of the race were set by the ISAF and not the respondent.
Summary Judgment
In Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361, Judge A. Kelly conducted a helpful survey of relevant authorities (including the leading authority Spencer v The Commonwealth (2010) 241 CLR 118) in relation to the proper approach to be taken when considering an application for summary judgment pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 and r.13.10 of the Federal Circuit Court Rules 2001. Pursuant to those provisions, the court may give judgment and order that a claim be dismissed generally or in relation to any claim for relief where satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim.
His Honour referred to Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 449 where Sundberg J summarised the approach taken by the Full Court of the Federal Court to s.31A of the Federal Court of Australia Act 1976 (Cth) (which is the analogue of the s.17A(2) of the Federal Circuit Court of Australia Act 1999.)
Sundberg J set out the following principles extracted from the Full Court of the Federal Court decision of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 (citations omitted):
· In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial.
· Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
· In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party.
· Where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A.
· The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”.
· As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
· Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced.
For the purposes of an application for summary judgment it is permissible to look beyond the pleadings and consider affidavits and other evidence.[1]
[1] George Fletcher (Trustee) [2010] FCAFC 53 [74]-[76] (Ryan and Logan JJ); J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 [8] (Pagone J); Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 [26] (Markovic J).
Judge A. Kelly referred to a series of propositions enunciated in Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 (Perram, Jagot and Beach JJ), including the following:
[46] First, a proceeding or claim need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success (s 31A(3));
[47] Second, s 31A(2) may justify summary dismissal where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [22]);.
[48] Third, the exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved….[2]
[2] Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158.
There was no dispute between counsel as to the proper principles to apply in this application and the matters set out conform with the submissions made to me.
Discrimination
Section 22 of the Sex Discrimination Act provides:
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section binds the Crown in right of a State.
Was Yachting Victoria Providing a Service?
The respondent relies on Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740 (‘Ferneley’) as authority for the proposition that Yachting Victoria provides no goods or services and makes no identified facility available and accordingly cannot be found to have breached s.22 of the Sex Discrimination Act.
Ferneley is quite particular to its own facts. In that case, Wilcox J was required to consider whether the respondent authority provided “services” within the meaning of s.22 of the Sex Discrimination Act. The Boxing Authority was a body constituted by a State Act (the Boxing and Wrestling Control Act 1986 (NSW) (‘Boxing Act’). Section 6 of that Act provided for the prescription by regulations of classes of boxers according to the style of fighting practised by them. Section 7 of that Act required the Boxing Authority to keep a register in respect of each class recording the names and addresses of persons who are registered as boxers of that class. Section 8(1) of the Act provided:
[a] male person of or above the age of 18 years may make an application to the authority to be registered as a boxer of a prescribed class.
In Ferneley, Ms Ferneley applied to the Boxing Authority for registration in two classes of the register established under the New South Wales Act; fistfight and kickboxing. The Boxing Authority drew her attention to s.8(1) of New South Wales Act. The applicant had sought, amongst other things, a declaration that s.8(1) of the Boxing Act was inoperative by reason of inconsistency with s.22 of the Sex Discrimination Act and the operation of s.109 of the Constitution.
Section 18 of the Sex Discrimination Act provides:
Qualifying bodies
It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorization or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) by refusing or failing to confer, renew or extend the authorization or qualification;
(b) in the terms or conditions on which it is prepared to confer the authorization or qualification or to renew or extend the authorization or qualification; or
(c) by revoking or withdrawing the authorization or qualification or varying the terms or conditions upon which it is held.
In Ferneley, the court held that as Parliament had made a special provision (s.18) concerning sex discrimination by authorities with power to confer an authorisation or qualification needed for engaging in an occupation, the general words of s.22 must therefore be read down to the extent necessary to exclude cases covered by the special provision.[3] His Honour held that the words of s.18 cover the case and therefore s.22 did not apply to the case. Because s.18 did not bind the Crown in right of a State (unlike s.22) it was found that s.18 did not apply to the matter. His Honour concluded that s.22 did not cover applications for registration in professional bouts and therefore it was not in breach of that section for the Boxing Authority to decline to consider Ms Ferneley’s application on its merits.[4]
[3] [2001] FCA 1740 [64].
[4] [2001] FCA 1740 [66].
I do not appreciate that the reasoning in that case has any particular relevance to the admitted facts presented in this case. It is not authority for the proposition that a body such as the respondent could be held to be providing a service in acting as the Organising Authority for the regatta. Its role is not analogous to that undertaken by a body authorising the practice of a profession, the carrying on of a trade or engaging in an occupation.
Claim of Exclusion of the Applicant on the Grounds of Gender
I do not accept the submission that the applicant does not have reasonable prospects of success in relation to a claim that the applicant was excluded from a men’s event because she was a woman on the grounds that it was the applicant’s boat and not the applicant who was excluded from claiming points from the event. The reason the boat was excluded was because the applicant was a woman seeking to race the boat with her father in a men’s event.
To the extent that parts of the claim rely on the allegation that the applicant was excluded from the event because of her gender, I do not find that there is no reasonable prospect of success.
In relation the submission that there was no discrimination because of gender as a result of the application of rules that applied to all participants, in my view this ground was not fully argued by the respondent and is not a matter that I can determine summarily.
The submission that the applicant through her father has:
a)consented to entering into an event that distinguishes between classes of events and gender of persons;
b)agreed to be bound by the rules of the event which by their own terms recognise the distinction between genders;
c)nominated to participate in a men’s event when she was a woman;
and therefore cannot subsequently complain that she has been excluded in accordance with the Rules has some force.
This is particularly the case given that the Applicant seeks an order by her amended applicant that:
[t]he respondent permit the applicant to enter and compete in any sailing competition that it conducts in accordance with the rules of the racing competition.
The applicant has made no claim that rules of the regatta contains terms that are discriminatory.
However, there remains a claim that the Notice of Race represented the basis on which Yachting Victoria was prepared to provide services and constituted discrimination as being less favourable treatment by refusing to provide the services on the grounds of sex and in the terms and conditions on which it provided the relevant services. The legal issue of whether she has consented to that treatment is a matter for trial, given that it was not fully argued before me and is a matter of some complexity. Further, the claim may be made that the terms of services constituted discrimination irrespective of whether the applicant agreed to the terms. The apparent agreement to the terms does not change their nature and effect.
In relation to the submission that the respondent can have no liability for any alleged discrimination because it was applying rules made by another body, I do not accept that that finally determines the issue even if accepted. The contrary submission is that by organising an event that had rules that are discriminatory on the grounds of sex, there is an arguable claim that the respondent is liable for the acts of discrimination arising from the application of those rules at the regatta which it organised. I accept that the contrary submission gives rise to a basis for finding that the applicant has an arguable claim in relation to the application of the Rules of Racing by the respondent.
In relation to a submission made by the respondent that the applicant was permitted to continue in the regatta in either a mixed or women’s class race, that is a matter to be established by evidence at trial. It is not currently established what race or races she could have continued to participate in.
Claims that are to be Summarily Dismissed
The claims made in relation to the effect of findings by the International Jury against Mr Coady are highly problematic and in my view have no reasonable grounds of success.[5] The racing rules make provision for the organising authority to appoint a race committee and when appropriate a protest committee and umpires (r.89.2). That rule provides further:
However, the race committee, an international jury and umpires may be appointed by the ISAF as provided in the ISAF regulations.
[5] Points of claim of the Applicant dated 16 September 2016 [14(b)]-[14(c)].
Rule 91(b) provides that where the event is an ISAF event, the jury is appointed by the ISAF under r.89.2 and therefore not by the organising authority. Rule N1.1 under Appendix N to the rules provides:
An international jury shall be composed of experienced sailors with excellent knowledge of the racing rules and extensive protest committee experience. It shall be independent of and have no members of the race committee, and be appointed by the organising authority, subject to approval by the national authority if required (see rule 91 (b)), or by the ISAF under rule 89.2(B).
In my view, the scheme of the rules, which were tendered into evidence, establishes that the International Jury works independently of the organising authority when making its decision. Given that the event was an ISAF event, the jury was appointed by that body rather than the organising authority. I do not believe that the applicant has any reasonable prospect of succeeding in a claim that asserts that the International Jury was acting as an agent of the organising authority when it deliberated in relation to the conduct of Mr Coady.
The applicant has not provided any basis for the allegation that officials of the respondent followed the boat sailed by the applicant.[6] There has been no basis set out for the allegation that the International Jury, convened under the rules of racing, are officials of the respondent and no submission was put by the applicant in support of that claim that the jury or officials (undefined) were employees or agents of the respondent.
[6] Points of claim of the Applicant dated 16 September 2016 [12].
The substance of the applicant’s claim is that she was excluded from the regatta and her results were not recorded. The claims involving her father, who is not a party, will unduly prolong the hearing of this matter and are not necessarily a part of the claim. The allegation in paragraph 14(c)(1) in relation to the conduct of Mr Coady before the International Jury, does not impact on the claim of discrimination on the grounds of sex made by the applicant.
In relation to the claim of damage said to have been suffered by the applicant, I do not accept the applicant has any reasonable prospect of success in relation to a claim that the respondent has any responsibility for the conduct of other competitors who are said to have verbally abused the applicant because she was a woman competing in a men’s event.[7]
[7] Points of claim of the Applicant dated 16 September 2016 [18(a)].
Similarly I find that the applicant has no reasonable prospect of successfully establishing that the International Jury’s findings against her father of gross misconduct, gross breach of the rules, bad manners, and poor sportsmanship constitute discrimination against her on the grounds of sex. Those findings were made against Mr Coady. The applicant was not present at the hearing before the International Jury where it is alleged that he said things to the jury members.
Future Conduct of the Proceeding
This matter shall proceed on the basis of a claim that the respondent provided a service by acting as the organising authority for a regatta and unlawfully discriminated against the applicant on the basis of her gender when it excluded her from further participation in the regatta on 9 December 2014 and refused to award ISAF ranking points to the applicant or her boat for participating in a men’s event.
It will then be a matter for the respondent, if it so chooses, to defend the proceeding relying on s.42 of the Sex Discrimination Act to establish that s.42(1) of the Sex Discrimination Act applies. The question of damages will be determined after liability is determined if that claim is pursued.
Section 42 provides:
Sport
(1) Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
It will then be a matter for the respondent, by credible evidence, to make good the proposition that there is a difference between the men’s event and the women’s event in terms of the type of boats used and the role that strength, stamina and physique of competitors has or is relevant to those activities. In order to deal with the matter efficiently, I suggest that a notice to admit facts be served by the respondent pursuant to r.15.31 of the Federal Circuit Court Rules 2001, which sets out in clear terms the facts said to constitute the basis of the defence.
Otherwise the court orders that:
a)Paragraphs 12, 14(b) and (c), 16(a)(ii)(b) and (c), 18(a) and (b) of the points of claim be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules2001.
b)The applicant file and serve amended points of claim to give effect to this decision by 21 April 2017.
c)The respondent have leave to file a defence to the amended points of claim by 2 May 2017.
d)The applicant file affidavits that she intends to rely on as evidence in chief by 26 May 2017.
e)The respondent file any affidavits that it intends to rely upon as evidence in chief by 21 June 2017.
f)Notice of any expert evidence to be adduced by either party must be given by 18 July 2017 with the notice setting out the qualifications of the expert witness and an outline of the evidence to be given.
g)The applicant and respondent by their representatives confer for the purposes of preparing a jointly prepared document setting out an outline of issues to be determined by the Court and a statement of agreed facts.
h)The matter be fixed for hearing on 17 August 2017 at 10:00am with an estimated hearing time of 2 days.
i)The costs of the application to summarily dismiss the proceeding be reserved.
In the circumstances where the respondent has been partially successful in relation to findings that parts of the claim made by the applicant are not reasonably arguable but has not succeeded in an application to dismiss the claim, I reserve the costs of the application.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 6 April 2017
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