Darcy v Lyons
[2021] FedCFamC2G 229
•12 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darcy v Lyons [2021] FedCFamC2G 229
File number(s): BRG 390 of 2021 Judgment of: JUDGE JARRETT Date of judgment: 12 October 2021 Catchwords: HUMAN RIGHTS – Australian Human Rights Commission Act 1986 (Cth) – application for leave to commence application in Federal Circuit Court of Australia – where applicant alleges sexual harassment – where application sought to be commenced twenty years after alleged harrasment – where delay would cause substantial prejudice to respondent – application dismissed. Legislation: Australian Human Rights Commission Act 1986 (Cth), ss 46PH(1)(b), 46PO(3A)
Sex Discrimination Act1984 (Cth)
Cases cited: James v WorkPower Incorporated [2018] FCA 2083 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 8 October 2021 Date of hearing: 8 October 2021 Place: Brisbane Counsel for the Applicant: In person Counsel for the Respondent: In person ORDERS
BRG 390 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BELINDA LEE DARCY
Applicant
AND: JOSEPH ARTHUR LYONS
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
12 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application in a case filed on 2 September, 2021 be dismissed;
2.The application- alleging unlawful discrimination filed on 2 September, 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Jarrett:
This is an application in a case by Belinda Darcy for leave to commence proceedings under s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). In the proceedings that she wishes to commence, Ms Darcy wishes to advance a claim that she has been the subject of sexual discrimination and sexual harassment in breach of the Sex Discrimination Act1984 (Cth) at the hands of the respondent.
The evidence shows that Ms Darcy made a complaint to the Australian Human Rights Commission but that her complaint was terminated on the basis that it was made more than 12 months after the acts that she alleged constituted the relevant offensive conduct were committed. There being no explanation or no material to satisfy the Commissioner that time within which to bring the claim ought to be extended, it was terminated under s.46PH(1)(b) of the Australian Human Rights Commission Act. The relevant notice of termination is in evidence before me; see the affidavit of Belinda Darcy filed on 2 September, 2021.
Section 46PO of the Australian Human Rights Act provides, relevantly, as follows:
If (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1B) or section 46PH, and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination, any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Subsection (3) provides:
The unlawful discrimination alleged in the application (a) must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint, or (b) must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.
Subsection (3A) says:
The application must not be made unless:
(a) the Court concerned grants leave to make the application.
That power to grant leave was considered by Mortimer J in James v WorkPower Incorporated [2018] FCA 2083. Of that subsection, her Honour said this:
37. I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
38. There may be a range of other permissible considerations including:
(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications – such as prejudice to a party..
Here, Mr Lyons opposes the grant of leave. Both parties represented themselves; they do not have the assistance of lawyers. And the fact that leave was necessary and the factors that might be taken into account in determining whether leave ought to be granted or not were not matters that were at the forefront of the minds of either of the parties when they made their submissions.
The basis of Ms Darcy’s claim against Mr Lyons is what she says to be, I assume, sexual harassment or sexual discrimination. In her application that she filed on 2 September this year, she sets out eight episodes or events that she says grounds her claim. The first incident occurred when Mr Lyons said to her, “Give me a go,” and had said to her, “I don't want the relationship to be just platonic.” That of itself without more could hardly amount to sexual discrimination or sexual harassment, but it might be that there is something in the context in which those words were spoken that adds to it. There is nothing in Ms Darcy’s affidavit filed in support of this application that would add any context to those statements, however. She repeats the allegation in more or less the same terms in her sworn evidence.
The incident matter upon which she relies occurred, she says, when she visited Mr Lyons at his residential address in 1998 and Mr Lyons had said to her that if she did not lay on his bed with him, that it would be necessary for her to go home. She said there was a witness to this incident. However, that incident of itself, does not necessarily indicate any form of sexual harassment or sexual discrimination. Context is important, and there is no context. Neither is there any context given to that in the affidavit filed by Ms Darcy. She does not say, for example, whether she lay on the bed with him and then what happened or if she did not.
The third episode she says was when she was residing at the same address as Mr Lyons. Mr Lyons had touched her breast without her consent and said, “But they are just so lovely.” I accept that this episode could be seen as sexual harassment.
The fourth episode she says happened when Mr Lyons had stated to her that if she did not settle with one person, that she would go from one person to the next. She says that Mr Lyons had also stated to her that she had to make up her mind in reference to who she wanted to be with. I do not consider that those comments could in any way amount to sexual harassment or sexual discrimination.
The fifth episode occurred, she says, in January, 2002 when Mr Lyons stated something in reference to “a guy, and Joseph Arthur Lyons had said to me, ‘You’ve made up your mind and you’re with me now.’” Again, it is very difficult to see how that could possibly amount to sexual harassment or sexual discrimination.
The sixth matter, she says, was an occasion when Mr Lyons had said to her that he had been too tired to have sex with her and it had been necessary for her to reiterate to him that she did not want to be in a sexual relationship with him. Again, absent any context, it is difficult to understand how that might amount to sexual discrimination or sexual harassment, although if it was placed in context, perhaps a cause of action based upon it could be made out.
The seventh occasion she says took place in January, 2002 when she was sitting on a bed in her bedroom and Mr Lyons came into her room and said to her that he had been too tired to have sex with her and it had been necessary for her to reiterate to him that she did not want to be in a sexual relationship with him. It is not clear whether that is the same occasion as that which I have just dealt with, but it looks like it might be. But for the reasons I have already given, it would be difficult to see how that might be sexual harassment or sexual discrimination.
The eighth episode is one which has no sexual connotation to it all but rather is an allegation of an assault, when Mr Lyons is said to have grabbed Ms Darcy by both of her arms and shaken her and told her to go to her room.
Apart from those matters set out in the application, there is also another two incidents mentioned by Ms Darcy in her affidavit: one where she came home to a residence that she was occupying with Mr Lyons in Victoria and he was standing in the bathroom naked and the bathroom door was open and Mr Lyons had not attempted to conceal himself, according to Ms Darcy, and he had not attempted to close the door. She says that might be an occasion of sexual harassment or sexual discrimination. Another episode she mentions in her affidavit is that Mr Lyons had taken photographic images of her without her permission and he had the film of the photographic images that he had taken of her developed for his own use without her permission. She does not say, of what they were photographs.
I have some real doubt about whether any of those matters, save for the allegation that Mr Lyons touched her on the breast, falls foul of the Sex Discrimination Act. As I have said, devoid of any context, it is difficult to see how some of the matters about which there are complaints made would fall within the purview of the Sex Discrimination Act. However, given that this is an application for leave, and as Mortimer J says, the bar is not set very high, I assume that Ms Darcy will be able to make out the allegations in her application, and she may well make out an allegation that there has been sexual harassment or sexual discrimination.
The troubling aspect of this matter, however, is the delay in doing anything about it. On Ms Darcy’s own material, the alleged offensive acts occurred between 1998 and 2002, so nearly 20 years ago. There is some evidence in her affidavit that suggests that she started making some inquiries about these things after she was diagnosed with post-traumatic stress disorder in 2017. She approached some lawyers in May, 2020 – so nearly three years after her diagnosis – and they informed her that she could do nothing about her case because there was a limitation period that had probably expired. She made a WorkCover claim in Victoria in 2020, but that was refused. She made an application to VCAT in 2021, but that failed on jurisdictional grounds. She then commenced these proceedings.
There is no explanation in Ms Darcy’s affidavit material – and none was really offered in her submissions to me – about the delay in commencing these proceedings or attempting to commence these proceedings. If it was the case that she says that she did not know that Mr Lyons’ acts amounted to discrimination, then she does not say that, but in any event, that would not be an answer to the delay. Nor is it an answer to say that she was only diagnosed with post-traumatic stress disorder in 2017.
The evidence demonstrates that Ms Darcy does have the wherewithal to access legal advice. She accessed Shine Lawyers in 2020; she took proceedings in VCAT; she made a WorkCover claim and then proceeded with a challenge to WorkCover’s decision. Those things indicate that Ms Darcy has the wherewithal to protect her own interests.
I am not satisfied that Ms Darcy has demonstrated an adequate or reasonable explanation for the, on one view of it, more than 20-year delay in commencing these proceedings. The delay is quite properly described as extraordinary.
If I were to grant leave for these proceedings to continue, then there would be, in my view, some substantial prejudice to Mr Lyons. It is, in my view, oppressive for Mr Lyons to face serious allegations of the nature that Ms Darcy wishes to level at him when the relevant acts are said to have occurred more than 20 years ago. The acts have been investigated by the police. The evidence demonstrates that Ms Darcy took her complaints to the police in Victoria and they were investigated by them. As a result of their investigations, no charges were ever laid against Mr Lyons. In those circumstances, I consider that Ms Darcy’s delay and the prejudice to Mr Lyons resulting from that delay are overwhelming factors in favour of declining to grant leave to commence the application.
Both the application for leave and the initiating application must be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 12 October 2021. Dated: 4 November 2021.
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