Culpin v Scandinavian Tobacco Group Australia Pty Ltd

[2013] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

CULPIN v SCANDINAVIAN TOBACCO GROUP AUSTRALIA PTY LTD & ANOR [2013] FCCA 1666

Catchwords:
HUMAN RIGHTS – Application for relief in respect of sexual harassment – application considerably out of time – whether extension of time should be granted – consideration of relevant matters – extension of time granted/not granted.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.28A & B, 106

Phillips v Aust. Girls Choir [2001] FMCA 109
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Ferrus v Qantas Airways Limited [2006] FCA 812
Lawton v Lawson [2002] FMCA 68
Scanlon v American Cigarette Company (Overseas) Pty Ltd and Another (No.1) [1987] VR 261
Dix and Another v Crimes Compensation Tribunal [1993] 1 VR 297

Applicant: STACEY CULPIN

First Respondent: SCANDINAVIAN TOBACCO GROUP AUSTRALIA PTY LTD

Second Respondent: TONY LA ROCCA

File Number: MLG 1215 of 2013

Judgment of: Judge Jones

Hearing date: 8 October 2013

Date of Last Submission: 8 October 2013

Delivered at: Melbourne

Delivered on: 22 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Champion

Solicitors for the Applicant: Blue Rock Law

Counsel for the First Respondents: Mr Harris

Solicitors for the First Respondents:	CCI Lawyers
Counsel for the Second Respondents:	Mr Hooper

Solicitors for the Second Respondents: Chiodo Madafferi Solicitors

ORDERS

1. The applicant be allowed, pursuant to s.46PO(2) of the Australian Human Rights Commission Act 1986, further time in which to make an application against the respondents pursuant to the Sex Discrimination Act 1984 until 3 August 2013.

2. The application be listed for trial commencing 7 May 2014.

3. Further trial direction to be issued in due course.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1215 of 2013

STACEY CULPIN

Applicant

And

SCANDINAVIAN TOBACCO GROUP AUSTRALIA PTY LTD

First Respondent

TONY LA ROCCA

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. On 2 August 2013 Ms Stacey Culpin (“the applicant”) made an application to the Court pursuant to s.46PO(1) of the Australian Human Rights Commission Act 1986 (“the AHRC Act”).

2. The applicant’s claim is that she was sexually harassed within the meaning of s.28A of the Sex Discrimination Act 1984 (“the SD Act”) by Mr Tony La Rocca (“the second respondent”) in a series of incidents in her employment with Scandinavian Tobacco Group Australia Pty Ltd (“the second respondent”) in the period from January 2012 until July 2012. She alleges that the first respondent is vicariously liable for the actions of the second respondent pursuant to s.106 of the SD Act.

3. The applicant lodged a complaint in the Australian Human Rights Commission (“the AHRC”) on 17 August 2012. The President issued a notice of termination on 4 March 2013 on the grounds that there was no reasonable prospect of the matter being settled by conciliation.

4. Relevantly s.46PO(2) of the AHRC Act provides as follows:

   “The [Court] application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.”

5. Plainly the application made by the applicant was not made within

   
   

   60 days of the date of the notice of termination. Indeed it was made some 3 months out of time.

6. The applicant is seeking an extension of time within which to lodge her application to this Court.

Extension of time – legal principles

1. I am satisfied that the principles relevant to the Court’s discretion to grant an extension of time are those set out in the following extract from the decision of McInnes FM (as His Honour then was) in Phillips v Aust. Girls’ Choir & Anor.[1] (“Phillps”) which were drawn from the principles distilled by Wilcox J in Hunter Valley Development Pty Ltd v Cohen [2] and the refinement of the principles by a superior Courts:

   “1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

   2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

   3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)

   4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.  (See Doyle at p 287)

   5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)

   6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)

   7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”

   [1] [2001] FMCA 109

   [2] (1984) 3 FRC 334 at 348

2. As noted by Collier J in Ferrus v Qantas Airways Limited[3], these principles have been applied in a number of decisions of the Federal Court of Australia cases.[4] Collier J went on to observe [20]:

   [3] [2006] FCA 812

   [4] Ibid at [19]

   “The seven principles were summarised – in my view, accurately – by Phipps FM in Drew v Bates [2005] FMCA 1221 as three matters:

   1.      explanation for delay

   2.      any prejudice to the respondent

   3.      whether the applicant has an arguable case.”

3. I am mindful that, in the exercise of the Court’s broad discretion pursuant to s.46PO(2), the remedial and/or beneficial nature of the human rights legislation is appropriately taken into account.

4. In Lawton v Lawson[5] Brown FM noted that:

   “the discretion granted by section 46PO(2) of the HREOC Act does not express any qualifications or set any criteria for the exercise of the discretion.

   Accordingly, I bare in mind that the Act itself deals with matters pertaining to human rights and discrimination. Accordingly, there exist strong public policy reasons, in my view, that the court should, if possible entertain bona fide claims made pursuant to the Act and other related Acts, such as the SDA.[6]”

   [5] [2002] FMCA 68

   [6] [2002] FMCA 68 [30], [31]

Proceedings

1. The parties agreed that the determination of this matter should proceed on the papers and the Court is satisfied that these proceedings, being interlocutory in nature, it is appropriate to do so.[7]

   [7] Scanlon v American Cigarette Company (Overseas) Pty Ltd and Another (No.1) [1987] VR 261

Applicant’s submissions and affidavits

1. The applicant relied on her Court application which attached a copy of her original compliant to the AHRC and her affidavits filed on

   
   

   24 September 2013 and 4 October 2013.

Delay

1. The applicant submits there are 3 overlapping reasons for delay:

   a)The applicant was suffering from a protracted and significant depressive illness before, during and after the 60 day period;

   b)The applicant had very limited financial resources; and

   c)As a result of her limited financial resources the Applicant did not have legal representation and her lawyer during the AHRC process was, for a time, unable to act.

2. The applicant deposes that, as a consequence of the sexual harassment she experienced whilst employed by the first respondent, she developed severe anxiety and depression in or about July 2012 and that from July 2012 until June 2013 she attended various doctors who provided her with counselling and provided her with anti-depressant medication. She deposes in her affidavit filed on 24 September 2013:

   “7.During my period of depression, I spent whole days and even weeks bedridden. In between March 2013 and June 2013 I spent most of my days in bed. During the period of depression, I had bills that were accumulating, which exacerbated my condition. My coping mechanism at this was to stop opening my mail in an attempt to hide away from the world and my problems including dealing with the sexual harassment. At this stage, I was not interested in working for an employer ever again and I felt completely hopeless.

   8.I received the Notice of Termination dated 4 March 2013 by mail. I did not open the Notice of Termination until late March 2013 as this was a period in which I was not opening my mail (as described above). I remember reading the Notice of Termination, but I did not take in that I had only 60 days in which to commence legal proceedings. I have since been advised by my solicitors that I had 60 days from 4 March 2013 (the relevant period) to file an Application with the Federal Circuit Court. In any case, due to my mental fragility and lack of energy to do anything during the relevant period, I was not in a position where I could summon the will to commence legal proceedings…”

3. The applicant has attached to her affidavit correspondence from two treating medical practitioners. The letter of Dr Sara Smeeton, General Practitioner, dated 13 September 2013 states:

   “Ms Stacey Culpin, age 30 yrs was seen on 25/05/2013, 29/05/2013 and 19/06/2013. The diagnosis was depression. She was put on antidepressant medication to a dose of Efexor 150mg/day. At the time of the consultations she had low mood and anxiety. She told me that she was victim of sexual abuse.

   Stacey has been distressed and she has been unable to attend court while the treatment for her depression and anxiety has been stabilised.

   Stacey would not have been able to deal effectively with legal proceedings.”

4. A letter from Dr Desmond Wong dated 13 September 2013 states:

   “Ms Stacey Culpin, age 30 yrs was seen by me on 20/08/2012 and 07/11/2012. The diagnosis was depression. She was prescribed Efexor 150mgs/day. At the time of consultation she was tearful and emotional as she felt she was a victim of sexual harassment.

   Stacey was extremely distressed and was overwhelmed by the situation. I believe she was incapable of thinking clearly enough to pursue legal proceedings.”

5. The applicant deposes that from April 2012 she operated a “small
   on-line business named “Forever Flowering”” which “specialises in selling fake flowers”.

6. As to her financial circumstances, the applicant deposes that since June 2012 she has not been employed. Her on-line business, she estimates, produced on average weekly gross profit of $85.00. The applicant produced copies of her bank statements from November 2011 to

   
   

   11 September 2013 and payment history from the applicant’s business Paypal accounts.

7. The applicant also deposes she has accumulated debts related to rent and bills in excess of $50,000.00.

8. The relevance of the “extreme financial difficultly” the applicant deposes she has experienced since leaving the employment is her third reason given for the delay in filing in this Court; that is, her inability to obtain legal representation on a “no win – no fee” basis.

9. The applicant deposes that in late July 2012 she contacted various government agencies including the Fair Work Ombudsman and the Victoria Equal Opportunity and Human Rights Commission in relation to her rights. She deposes that the former agency gave her advice regarding the costs of legal proceedings and she formed the impression that there were significant costs involved in making a sexual harassment claim in this Court. She then made various approaches to law firms to ascertain whether they would take her case on a “no win – no fee” basis.

10. The applicant deposes that in late July 2012 she was able to obtain the services of a certified legal practitioner (Mr Glavas) on a “no win – no fee” basis up until early February 2013. Due to Mr Glavas’ change of employment, the applicant was no longer able to access legal representation on a “no win – no fee” basis. Her evidence is that she approached a friend in May/June 2013 for a monetary loan and that in or about July 2013 she was able to obtain a loan from a friend to commence legal proceedings. This money was then deposited in the trust account of her solicitors with whom Mr Glavas now works. It is to be noted that in May 2013, Mr Glavas contacted the applicant and advised her that she was “out of time” to pursue her claim in Court but that the Court may grant an extension of time.

11. As to the merits of her claim, the applicant submits that her allegations (contained in the AHRC compliant) against the second respondent, include:

    “(a)  pulled her pants down in the office;

    (b)requested “one touch” by which he meant one touch of his genitalia on her genitalia;

    (c)asked on several occasions if he could make a deal whereby she would swap sex in exchange for work-related late favours;

    (d)  would constantly talk about Applicant’s breasts and bottom;

    (e)would rub the Applicant’s bottom with his hands and ask what material her pants were made from.”

12. The applicant submits that, if proved, the conduct clearly constitutes sexual harassment within the meaning of s.28A of the SD Act and that the conduct is sexual harassment of the serious kind.

13. The applicant deposes that since ceasing employment with the first respondent it has been difficult for her to consider alternative employment as she “associate(s) significant pain and suffering with employment and the thought of returning to a workplace instils great fear in (her)”.

14. Consequently, the applicant submits her health has suffered significantly and she has suffered loss of income.

15. She submits that she clearly has an arguable case.

16. The applicant submits the touchstone for an extension of time aught be the interests of justice. The applicant states in her outline of applicant’s submissions in support of an application for an extension of time at [38]:

    “…The Applicant alleges that her fundamental human right to a workplace free from sexual harassment has been breached. The adverse impact on her from being denied a day in court and an opportunity to prove her claims is very great. The potential injustice which would be accrue to her from being denied her day in court outweighs any injustice that accrues to the Respondents from a 58 (sic) day delay in the commencement of the application.”

17. It is to be noted that in the proceedings, Counsel for the applicant corrected the estimate of delay to 91 days.

First respondent’s submissions and affidavits

1. The first respondent relies on two affidavits; the first filed by Mr Antonio Garcia, Manager Director and the second, by Mr Saul Berman, Contact Centre Manager, both filed on 1 October 2013 as well as the outline of submissions.

2. The first respondent emphasises the length of period the applicant filed out of time (91 days out of time) in context of a generous 60 day time period provided for filing in this Court.

3. The first respondent challenges the applicant’s claims that because of her psychiatric illness she was unable to take steps to institute legal proceedings:

   “…It is submitted that this claim, that she was incapable of taking action to enforce her rights, lacks credibility. The evidence in fact suggests the suggestions of incapacity during that period are either untrue or at least the subject of gross exaggeration. The Applicant’s public disclosures on social networking media demonstrate that she was apparently well enough to:

   (a)develop her business, including making enquiries for, and establishing, business premises, and conducting a “ground opening” during the period in which she alleged to “lack energy to do anything”;

   (b)travelling interstate, including making the necessary arrangements for her pets to travel;

   (c)notify and friends and associates about her business and personal activities.”

4. The first respondent submits that the evidence in relation to the applicant’s psychiatric condition and its impact on her capacity to institute legal proceedings in this Court is not compelling and indeed insufficient. It points out that, on her own evidence, in July 2012 she was capable of canvassing rights with Fair Work Ombudsman and the Victorian Equal Opportunity and Human Rights Commission, that she was able to prepare a complaint in August 2012 and participate in conciliation in the AHRC in February 2013 with the assistance of legal representative and, further, that between the records of attendance at her medical practitioners’ Dr Wong and Dr Smeeton there is a significant gap in the medical evidence, from November 2012 to May 2013. Further, the first respondent submits that the medical practitioners’ opinions derive from the applicant’s instructions as to her complaints and “legal proceedings”. Moreover, the applicant was not required to attend Court but to instruct solicitors to issue proceedings in this Court and that the applicant clearly had the capacity to deal with legal proceedings in late May 2013 when she was contacted by her former lawyer, Mr Glavas.

5. The evidence of social networking disclosures is contained in the affidavit of Mr Berman. At the instruction of Mr Garcia, Mr Berman searched media postings attributable to the applicant. He deposes he located the following postings by the applicant:

   “…

   a.    One Twitter profile called “Stacey Culpin @StaceyCulpin”;

   b.    One Facebook business profile “Forever Flowering”;

   c.    One Facebook profile in the Applicant’s name;

   d.    One eBay for “Forever Flowering”;

   e.    One LinkedIn profile.”

6. Mr Berman deposes he located postings by the applicant regarding travel by the applicant, the establishment of the applicant’s on-line business and miscellaneous topics.

7. The postings identified by Mr Berman are as follows:

   “7.The Applicant’s Postings on Twitter which appeared to concern Travel included:

   a.“Going out of town for a week and need somewhere for my 2 maltese shitzues Nang N BoBo Culpin to stay. I don’t…”- 16 May 2013;

   b.“Does anyone know how much it costs to fly a small dog interstate if you already have the cage?” – 16 May 2013;

   c.       “FUCKING HATE JET STAR!” – 18 May 2013;

   d.     “Who knew that the Hilton is pet friendly?! Thank you Paris Hilton” – 18 May 2013.

   8.The Applicant’s Posting on Twitter which appeared to concern setting up and opening a Forever Flowering store included:

   a.“Looking for a shop/dwelling for FF. Thinking Port Melb,’ Williamstown or St Kilda…” – 5 March 2013;

   b.“is anyone a commercial real estate agent?” – 20 March 2013;

   c.“Forever Flowering stope opening in Newport!” – 6 June 2013;

   d.“Hello Newport” – 13 June 2013;

   e.“Forever Flowering Showroom Grand Opening 29^th June!” 17 June 2013;

   f.“The countdown is on. 5 more sleeps until the very first Forever Flowering Store opens it’s doors…” – 24 June 2013;

   9.The Applicant’s Posting on Twitter regarding miscellaneous topics included:

   a.“One day, when i grow up, Im going to get married to the man of my dreams and go here for the Honeymoon!” – 18 March 2013;

   b.“Wtf! The guy who is responsible for the boston bombings was shot dead by the FBI during an interview. How is that not a headline??” – 23 May 2013;

   c.“EXCITINGLY, I really feel there is a greater sense of ‘Awareness’ lately and we’re all NOT eating up the bullshit we are fed constantly.” – 23 May 2013; and

   d.“Anyone no someone who can re carpet a room really cheap?” - 13 June 2013”

1. Mr Berman further notes a posting on the applicant’s Facebook page which states “In a Relationship”, dated 4 April 2013, and the applicant’s business eBay profile and feedback from customers between March and June 2013.

2. The first respondent submits that the applicant was active socially in the relevant period. It points out that her bank statements attached to her affidavit filed 24 September 2013, “SC-4”, disclosed that she was at Adelaide Airport on 25 July 2013, Lorne in the period 1 June 2013 to 2 June 2013, Daylesford on 13 February 2013 and Glenelg/Adelaide around 10 November 2012. The first respondent submits that her tweets reveal an excited women setting up and fostering her business. The first respondent submits that the applicant’s creditability as to her psychiatric condition is damaged by her own financial records regarding the activities she was involved in the relevant period.

3. The first respondent submits that the applicant, on her own admission, opened the notice of termination from the AHRC in late March 2013, well within the time limit. The notice from the AHRC is clear and cast in a non-technical language and the 60 day timeframe stated unambiguously. The failure to take steps to comply with the time limit was a “deliberate decision to obtain this claim”.

4. As to the applicant’s financial hardship and its effect on her obtaining legal representation the first respondent submits that the applicant’s belief that her limited financial capacity meant she would not be able to pursue her claim through the Courts, is in fact evidence she had decided to abandon her claim. The first respondent submits, that in the absence of any activity by the applicant it was entitled to believe the applicant had abandoned her claim.

5. The first respondent submits it is prejudiced by the delay as the (then) Human Resource Manager/Specialist who was responsible for the AHRC complaint and internal investigation left the business on

   
   

   7 August 2013.

6. Mr Garcia stated that Ms Marie Calder was the first respondent’s HR Manager responsible for its equal opportunity and sexual harassment policies and organising employee training on topics including harassment. He deposes Ms Calder was integral to handling the applicant’s complaint of sexual harassment and the investigation into the complaint conducted by Victoria Employer’s Chamber of Commerce and Industry (“the VECCI”).

7. Mr Garcia deposes Ms Calder resigned on 7 August 2013 to establish her own consultancy business. He deposes that the delay in the filing of the applicant’s application in this Court did not provide the first respondent sufficient time to seek legal advice and instruct Ms Calder to:

   “…

   a.  to collate all relevant documents associated with the Complaint;

   b.  to prepare an Affidavit to assist the First respondent defend the Application; and

   c.  to provide the First Respondent with detailed information regarding handling of the Compliant.”

8. As to the merits of the claim, the first respondent submits that the material before the Court amount to bare allegations which the Court is obliged to weigh against the evidence of both respondents. In the case of the second respondent they amount to a denial of all allegations of sexual harassment made by the applicant. In case of the first respondent, on the material before the Court, “it is most unlikely” the first respondent will be found vicarious liable. It submits it had extensive policies dealing with equal opportunity and harassment and provided relevant training to the second respondent.

9. Mr Garcia deposes that the second respondent attended an equal opportunity/harassment (including sexual harassment) seminar conducted by VECCI at the first respondent’s premises. Mr Garcia attaches records which are said to be of the second respondent attending the seminar in July 2011 together with the content of the seminar.

Second respondent’s submissions and affidavits

1. The second respondent relies on the affidavit of Tony La Rocca filed on 3 October 2013 and its outline submission.

2. The second respondent generally relies on the submissions of the first respondent and in addition makes the following submissions:

   ·Parliament increased the then time limit of 28 days to 60 days after a review by the Productivity Commission. It is to be inferred that it is Parliament’s view that 60 days is a sufficient time within which complainants can apply to the Courts for their matter to be dealt with and this time limit should be adhered to;

   ·The second respondent has strongly and consistently denied all allegations made by the applicant from the time the complaints were first made;

   ·The delay in this matter is a significant one; namely 91 days;

   ·There is no adequate explanation for the delay and whilst it is settled principle that an acceptable explanation for the delay is not precondition to allowing a further period of time under s.46PO(2) of the AHRC Act, this should be given more weight in the Courts consideration;

   ·As to the adequacy of the applicant’s explanation for the delay, the medical evidence is scant and there is a six month gap between the applicant’s attendance at Dr Wong and Dr Smeeton. Against this medical evidence produced by the applicant is the documentary evidence of social postings which disclose that over the relevant period of time, the applicant was able to run a flower business and find and prepare a retail shop, travel extensively interstate and around Victoria and able to log thoughts and opinions on regular basis;

   ·The second respondent is prejudiced by the delay by reason of the fact that he resigned from his employment with the first respondent 15 months ago. Given the length of time, the second respondent will experience difficulty in terms of accuracy of his memory of the events, access to relevant documents including emails and there remains a real question to whether records held by the respondent relevant to the matter continue to exist. Where the second respondent is unable to access records the matter can be resolved only by one person’s word against the other. Ms Calder’s resignation from the second respondent adversely affects the second respondent as he is not sure whether he will now get assistance from Ms Calder.

3. The second respondent points out that there is tension between the right of the applicant to have her day in Court and the respondent relying with certainty on the legislative deadline, thereby enabling him to get on with his life. Referring to the decision of the Court of Appeal in Dix and Another v Crimes Compensation Tribunal[8], the second respondent submitted that the applicant did not by non-curial means make the second respondent aware that she continued with her claim; in other words that he should not consider the matter finalised. The second respondent believed that he could get on with life without continuing litigation.

   [8] [1993] 1 VR 297

Consideration

1. The power given by s.46PO(2) of the AHRC Act is in unrestricted terms; namely, “such further time as a Court concerned allows”. No doubt the prima facia rule is that proceedings commenced outside the proscribed period will not be entertained. However, special circumstances need not be shown. The requisite satisfaction is that the Court is positively satisfied it is proper to do so. The Court turns to the principles or considerations set out in Phillips.

Explanation for delay

1. What is an “acceptable” explanation for delay clearly depends on the particular circumstances. The ordinary meaning of “acceptable” can be ascertained by reference to its dictionary meaning. The Australian Concise Oxford dictionary relevantly defines “acceptable” as:

   “... 2 adequate, satisfactory. 3 tolerable…”

2. What is an acceptable explanation may derive from a particular factor, circumstance or reason or combination thereof.

3. The Court is satisfied that the following factors in combination advanced by the applicant render the explanation for the delay acceptable:

   ·The applicant’s psychiatric condition, anxiety and depression, diagnosed by her treating medical practitioners, Dr Wong and Dr Smeeton and the opinion in particular of Dr Smeeton as to the incapacity of the applicant in May and June 2013 to, “deal effectively with legal proceedings”;

   ·The applicant’s reliance on legal representation on a “no win – no fee” basis in or around August 2012 to lodge her compliant to the AHRC and subsequently to participate in the conciliation process in the AHRC in or around February 2013;

   ·The fact that her access to legal representation on this basis ceased following conciliation in the AHRC, in the context where the applicant’s financial circumstances, at least up until July 2013, where such that she could not make the necessary financial commitment to obtain legal representation.

4. As to the applicant’s financial circumstances, the Court is not here making a finding that the applicant was impecunious in the sense of being in dire straits. Rather, having regard to the various financial records provided by the applicant in her affidavit material, the Court is satisfied that the applicant was not in a position, until she obtained the personal loan from her friend to make the necessary financial commitment to obtain ongoing legal representation. The first respondent submits that the Court cannot be satisfied that the material presented provides a complete picture of the applicant’s financial circumstances. This somewhat misconceives nature of these interlocutory proceedings which are, by consent, being conducted on the papers. The Court accepts that the applicant has not been employed since July 2012 and is not prepared to infer that it is being misled by the applicant in the disclosure of her financial records.

5. Both respondents attack the quality and comprehensiveness of the medical evidence. The Court notes that there is a gap in the attendance by the applicant with her medical practitioners between early November 2012 and May 2013, however, the diagnosis is consistent namely that she suffered depression as was the treatment, being anti-depressants. Notwithstanding the first respondent’s faint suggestion that the reference by Dr Smeeton to “sexual abuse” may be some other factor said to contribute to the applicant’s condition, I am satisfied that, in context, it was a reference to sexual harassment. In any event, in this matter, it is irrelevant what the cause of the medical condition was, it is the fact of the condition and the opinion of her treating medical practitioners as to its impact on her. Dr Wong opines that the applicant, “was incapable of thinking clearly enough to pursue legal proceedings”. The Court accepts, this being the applicant’s evidence, that she contacted government agencies in July 2012 in relation to her rights. The point, however, is that the applicant pursued her legal proceedings; namely, the making of her compliant and her participation in conciliation proceedings in the AHRC, with the assistance of legal representation. That was lost to her, for the reasons discussed earlier, until July 2013. Dr Smeeton who saw the applicant twice in May 2013 and then in June 2013 opined that the applicant, “would not have been able to deal effectively with the legal proceedings”. The Court is satisfied that the applicant was, on the evidence available, not able having regard to her medical condition to deal with legal proceedings without the assistance of her legal representative.

6. The respondents point to the applicant’s social network postings, her travel interstate and within Victoria during the relevant period and the conduct of her online business as evidence that weighs against the applicant’s claim that she was not able to take requisite steps to institute Court proceedings. No doubt the applicant was able to socially network, however, the content and nature of those postings as evidenced in the first respondent’s affidavit material is not, in the Court’s view, such as to undermine the opinions of the applicant’s medical experts. The Court does not agree that the financial records as to the applicant’s travel discloses a person who is travelling “extensively”. The question is not whether the applicant was completely incapacitated by her medical condition. The question the Court must determine is whether her medical condition together with the loss of legal representation and financial circumstances constituted an acceptable explanation for the delay in instituting proceedings in this Court. Again, there is no doubt that the applicant continued in a relevant period conducting her online business, which was established in April 2012, and indeed, apparently, established a retail store. However, as stated earlier, it is not a question of complete incapacity but the applicant’s ability to deal with the legal proceedings relating to her sexual harassment complaint unrepresented in the context of the anxiety and depression she alleges that she suffered from that conduct.

7. There is no dispute that the applicant communicated with her former lawyer in May 2013 and that communication was in relation to her sexual harassment complaint. The applicant may well have been able to effectively deal with legal proceedings in relation to a sexual harassment complaint had she the funds to obtain legal representation at that time. However, the Court accepts the applicant’s evidence that she did not.

8. On balance, the Court is satisfied that the applicant has provided an acceptable explanation for the delay in pursuing her application under s.46PO.

Prejudice to the respondents

1. The Court accepts that, in absence of any indication to the contrary by non-curial means, both respondents were entitled to anticipate that the matter had been finalised.

2. The Court is satisfied that the resignation by Ms Calder, formerly the HR Manager with the first respondent, may impose some inconvenience to the first respondent. However, this must be weighed against the fact that:

   ·Mr Calder was responsible for establishing and overseeing the VECCI investigation into the complaint; and

   ·Ms Calder was responsible for the AHRC complaint.

3. It is to be expected that, given this, the task of identifying and collating documentation will not be onerous as it would have already been engaged in for the purpose of the VECCI investigation and the AHRC complaint.

4. It is not evident to the Court how the fact that Ms Calder is no longer in the first respondent’s “control” is relevant to a consideration of prejudice. The Court presumes that this will not affect the veracity of her evidence. The Court accepts, however, that to the extent the first respondent is charged for Ms Calder’s time the first respondent will incur additional costs.

5. The second respondent deposes that the applicant’s allegations have had serious consequences for him since June 2012 affecting his health, his employment and relationship with family and friends and that, in the event the applicant is able to recommence her legal action against him, it will further impact on his health, relationships and he will incur legal costs. The prejudice the Court must consider is that prejudice occasioned by the delay by the applicant in pursuing litigation. The impacts alleged by the second respondent would no doubt have occurred if the applicant had pursed litigation within the time period allowed by s.46PO(2) of the AHRC Act. Consequently, it is not prejudice of a relevant kind.

6. The second respondent submits that he will also suffer prejudice by reason of the time period since the applicant first made her complaints and the impact on his memory, access to relevant documentary material (in circumstances where he is no longer employed by the first respondent) and his ability to deal with Ms Calder. This prejudice must be weighed, however, against the fact that the second respondent has no doubt participated in the internal investigation conducted by the VECCI and the AHRC complaint. No doubt the documentary material collated and produced for purpose of these two processes will be fully ventilated if the matter were to proceed before the Court. The Court notes that the date of the conduct the subject of the complaints are well within the standard statutory time limitations.

7. The Court is not satisfied that the respondents will suffer other than very minimal prejudice occasioned by the delay.

Has the applicant arguable case

1. It is appropriate to refer to the relevant statutory provisions. Section 28B(2) of the SD Act provides that it is unlawful for an employee to sexual harass a fellow employee. Section 28A provides:

   “(1)For the purpose of this Division, a person sexually harasses another person (the person harassed) if:

   (a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

   (b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

   In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

   (1A)For the purpose of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

   (a)the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin,  of the person harassed;

   (b)the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

   (c)     any disability of the person harassed;

   (d)     any other relevant circumstances.

   (2)    In this section:

   “conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

2. Section 106 of the SD Act provides:

   “Vicarious liability etc.

   (1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

   (a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

   (b)     an act that is unlawful under Division 3 of Part II;

   this Act applies in relation to that person as if that person had also done the act.

   (2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.”

3. It is to be noted that s.28A & B fall within Division 3, Part II of the SD Act.

4. In considering the merits of the applicant’s claim, the approach to be adopted is whether the Court can be satisfied there is an arguable or prima facie case. As observed by McInnis FM in Phillips case at [32]:

   “…It is not appropriate for this court on an application of this kind to examine in great detail the merits of the application. It is sufficient to determine on the available material whether there is an arguable case.”

5. In circumstances where the evidentiary material is yet to be tested, it is appropriate to approach this question by considering whether, if the conduct alleged by the complainant in the circumstances alleged complainant were proved, it would fall within the provisions of

   
   

   s.28A & B of the SD Act. The conduct the applicant alleges the second respondent engaged in, which is referred to in summary form at paragraph [23] above, would, if proved, fall within the meaning of sexual harassment under s.28A of SD Act. The conduct alleged by the complainant and summarised above, is alleged to have occurred in the course of the applicant’s employment with the first respondent and engaged in by the second respondent. No doubt it is conduct falling within s.28B of the SD Act.

1. The first respondent submits that the material before the Court amounts to bare allegations by the applicant and the Court is obliged to have regard to the respondents’ evidence as well as the lack of veracity of the applicant’s evidence from medical experts. I have earlier dealt with the criticisms of the veracity of the applicant’s medical experts made by the respondents.

2. As to the submissions regarding “bare allegations”, the Court has before it:

   ·Emails sent by the applicant to Mr Garcia on 8 June 2012 detailing her complaints of sexual harassment engaged in by the second respondent. The details of the conduct complained of by the applicant in these emails are those which are included in the applicant’s complaint to the AHRC; and

   ·Evidence as to an internal investigation conduct by the VECCI into the applicant’s complaints and the evidence of Mr Garcia deposing that Ms Calder recommended that the second respondent be dismissed following the receipt of VECCI’s report.

3. The fact that the second respondent has denied continuously that he engaged in the conduct at all is, in the Courts opinion, not relevant to the task at hand.

4. The first respondent submits that, in any event, it is not vicariously liable for any conduct engaged in by the second respondent falling within the provisions of s.28A & B of the SD Act, by reasons of its policies relating to sexual harassment and the training undertaking by the second respondent in relation to these policies. The Court notes that the applicant deposes that she did not undertake any training of that type referred to by the first respondent. The second respondent is silent on this issue at this stage.

5. The Court is not satisfied on the material before it that the first respondent’s evidence as it relates to vicarious liability operates to defeat a finding that the applicant has arguable case. The Court notes that the apparent existence of a policy and training of the second respondent would be required, if the matter proceeded, to be considered against evidence regarding the enforcement of the policy, the second respondent evidence regarding the training and policy and the applicant’s evidence she did not undertake training.

6. Having regard to the material before it the Court is satisfied that the applicant has an arguable case.

Conclusion

1. The Court is positively satisfied having regard to the matters considered above, that it is proper to allow a further time, to 3 August 2013, for the applicant to file an application in this Court against the respondents alleging sexual harassment pursuant to the SD Act.

2. Accordingly the orders the Court propose making are:

   1.The applicant be allowed, pursuant to s.46PO(2) of the Australian Human Rights Commission Act 1986, further time in which to make an application against the respondents pursuant to the Sex Discrimination Act 1984 until 3 August 2013.

   2.The application be listed for trial commencing 7 May 2014.

   3.Further trial direction to be issued in due course.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: Haylee Hobbs

Date: 22 October 2013

Corrections

1. Order (1) and paragraph 77 (1) have been amended to reflect the correct legislation of Australian Human Rights Commission Act 1986