Eastman v Shamrock Consultancy Pty Ltd
[2018] FCCA 3436
•29 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EASTMAN v SHAMROCK CONSULTANCY PTY LTD | [2018] FCCA 3436 |
| Catchwords: HUMAN RIGHTS – Australian Human Rights Commission Act 1986 – application for leave to commence a proceeding alleging unlawful discrimination – considerations relevant to the question of leave. |
| Legislation: Fair Work Act 2009, ss.725, 727, 728, 732 Disability Discrimination Act 1992, ss.4, 5 Australian Human Rights Commission Act 1986, ss.46PH, 46PO Human Rights Legislation Amendment Act 2017, items 53, 58(9) of sch.2 Anti-Discrimination Act 1977 (NSW), ss.92, 93A, 96 Motor Accidents Act 1988 (NSW), s.52 Federal Circuit Court of Australia Act 1999, s.17A Federal Court of Australia Act 1976, s.31A Federal Circuit Court Rules 2001, r.13.10 |
| Cases cited: Hodkinson v Commonwealth (2011) 248 FLR 409 RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 |
| Applicant: | LEE-ANNE EASTMAN |
| Respondent: | SHAMROCK CONSULTANCY PTY LTD |
| File Number: | SYG 2347 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 7 November 2018 |
| Date of Last Submission: | 7 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. O’Sullivan |
| Solicitors for the Applicant: | Connect Legal |
| Counsel for the Respondent: | Mr B. Miles |
| Solicitors for the Respondent: | Pendlebury Workplace Law |
ORDERS
The applicant have leave to file within 7 days an amended statement of claim in the form of the draft statement of claim annexed to the affidavit of Richard Serop Aslanian affirmed 2 October 2018.
The matter proceed henceforth on pleadings.
The matter be listed for directions on 7 December 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2347 of 2018
| LEE-ANNE EASTMAN |
Applicant
And
| SHAMROCK CONSULTANCY PTY LTD |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
INTRODUCTION
Last year the applicant was dismissed from her employment. She now wishes to obtain damages and other relief as compensation for that dismissal. However, before she can prosecute her claim she must first obtain the Court’s leave to make that application.
BACKGROUND FACTS
The applicant was employed by the respondent, a company established by Allied Express Transport Pty Ltd (“Allied”) to manage payroll and administrative functions in respect of its office-based employees including the applicant who was based in Allied’s offices at Chullora. It seems that the applicant’s roles were largely sedentary in nature which is a not inconsequential fact in the circumstances. The applicant has deposed that for most of her adult life she has been overweight and at the time of her dismissal was morbidly obese which, amongst other things, made it difficult for her to walk long distances. She also suffered from a number of illnesses or conditions which she said imposed limitations on her.
The applicant deposed that she had had numerous discussions with:
… management, including the First Respondent's director Mr. Collin McDowell about my morbid obesity, my limited movement and the incapacities I had when walking to and from my vehicle.
The applicant’s evidence was that shortly before her dismissal she had fallen at work after losing her balance and had been helped to her feet by colleagues. She had also fallen at work on two earlier occasions, once in 2015 and once in 2016, and on both occasions had been helped to her feet by colleagues. After the 2017 fall, the applicant was sent by Allied for a medical examination and report. On 18 August 2017, after that examination, the respondent wrote to her saying that according to the examining doctor, she had significantly limited mobility, presenting an increased risk of falls, and that she would be a liability to Allied.
On 21 August 2017 the applicant was dismissed at a meeting with Mr Richardson, Allied’s National Operations Manager – Administration who, according to the applicant, said amongst other things:
Because of the information we have received from our doctor, we are going to have to terminate your employment.
The applicant subsequently filed an application with the Fair Work Commission (“FWC”) alleging dismissal in contravention of the general protections provisions of the Fair Work Act 2009 (”FW Act”) including because she suffered a disability. Other allegations were also made but seem to have been directed to rights potentially available under the Disability Discrimination Act 1992 (“DD Act”), although the significance of those claims in the context of the applicant’s FWC proceeding is presently unclear, particularly as no relief was sought by reference to the DD Act: see Hodkinson v Commonwealth (2011) 248 FLR 409 at 442-443 [138]-[143], 452-453 [188]; RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 456 [114].
After the FWC proceeding failed to settle at conciliation, the applicant discontinued there and filed a complaint with the Australian Human Rights Commission (“AHRC”) alleging disability discrimination and a failure to make reasonable adjustments for her. On 27 June 2018 that complaint was terminated by a delegate of the AHRC President on the basis that “the subject matter of the complaint [had] already been adequately dealt with by another statutory authority”.
THE PROCEEDING IN THIS COURT
Consequent upon the termination of her complaint to the AHRC, the applicant has applied for leave to commence a proceeding in this Court so that she can seek the following relief:
a.an order declaring that [the] Respondent has committed unlawful disability discrimination against the Applicant in contravention of section 5(1), 5(2) and 15(2) of the Disability Discrimination Act 1992 (Cth);
b.an order that the Respondent pay the Applicant damages by way of compensation for any loss or damage suffered because of the contravention of section 5(1), 5(2) and 15(2) of the Disability Discrimination Act 1992 (Cth) as assessed by the Court;
c.any other order or orders that the Court thinks necessary to remedy the effect [of] the above breaches;
dan order that the Respondent provide the Applicant a written public apology for the alleged discrimination;
e. any other consequential orders; and
f. costs.
The respondent opposes the application for leave to proceed.
LEGISLATION
Australian Human Rights Commission Act 1986
The leave sought by the applicant is required by s.46PO of the Australian Human Rights Commission Act 1986 (“AHRC Act”) which relevantly provides:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under … 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.
(2)…
(3)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.
(3A) The application must not be made unless:
(a)the court concerned grants leave to make the application; or
(b)the complaint was terminated under paragraph 46PH(1)(h); or
(c)the complaint was terminated under paragraph 46PH(1B)(b).
Section 46PH, which is referred to in s.46PO(3A), relevantly provides:
46PH Termination of complaint
Discretionary termination of complaint
(1)The President may terminate a complaint on any of the following grounds:
(a)the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination;
(b)the complaint was lodged more than 6 months after the alleged acts, omissions or practices took place;
(c)the President is satisfied … that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
(d)in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(e)the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;
(f)in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(g)the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;
(h)the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court.
…
(1B)The President must terminate a complaint if the President is satisfied that:
(a)the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b)there is no reasonable prospect of the matter being settled by conciliation.
(1C)The President must terminate a complaint if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.
Section 46PO(3A) was introduced into the AHRC Act on 13 April 2017 and applies to this case: items 53 and 58(9) of sch.2 to the Human Rights Legislation Amendment Act 2017. The Revised Explanatory Memorandum to the Bill which following amendments during debate became that amending Act, relevantly said in its general outline of the Bill:
38.Leave of the Court – Item 53 will introduce a requirement that leave of the Federal Court or Federal Circuit Court be granted to make applications alleging unlawful discrimination which were the subject of complaints terminated by the President. The only exceptions to this requirement will be where the President terminated the complaint because he or she was satisfied that the subject matter of the complaint involves a significant issue of public importance that should be considered by the Federal Court or Federal Circuit Court, or where a complaint was terminated because the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation. …
39.There is currently no substantive barrier to a person whose complaint has been terminated on the basis that it is trivial, vexatious, misconceived or lacking in substance from making an application to the court. Even if the court ultimately decides to dismiss the matter, the respondent is nonetheless exposed to potentially significant costs in defending an unmeritorious complaint. It also wastes the limited resources of the court.
40.In seeking leave of the court, an applicant will be required to explain why the matter should be allowed to proceed to substantive hearing. This additional step will ensure that allegations the subject of a complaint can only be litigated where there are reasonable prospects of success, limiting unnecessary impositions on time and resources, and avoiding prolonged uncertainty.
The Revised Explanatory Memorandum to the Bill went on in its explanation of individual clauses to say, relevantly:
Item 53 Subsection 46PO(3A)
153.This item inserts new subsection 46PO(3A), which provides that an application to the Federal Court or Federal Circuit Court must not be made unless the court grants leave to make the application, or unless a complaint was terminated under paragraph 46PH(1)(h) or paragraph 46PH(1B)(b) of the AHRC Act.
154.A complaint is terminated under paragraph 46PH(1)(h) if the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court. These matters should not require leave to make an application to the court.
57. [sic] A complaint is terminated under paragraph 46PH(1B)(b) if the President is satisfied that there is no reasonable prospect the matter will be settled by conciliation. This reflects that termination on the basis of no reasonable prospect of conciliation does not reflect the merit of the complaint.
Disability Discrimination Act 1992
Section 4 of the DD Act relevantly provides:
disability, in relation to a person, means:
(a)total or partial loss of the person’s bodily or mental functions; or
(b)total or partial loss of a part of the body; or
(c)the presence in the body of organisms causing disease or illness; or
(d)the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person’s body; or
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j)may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Section 5 of the DD Act provides:
5 Direct disability discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3)For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
SUBMISSIONS
Applicant
The applicant submitted that the DD Act is one of a number of Acts whose purpose is to protect individuals from prescribed categories of discrimination and to provide them with redress if prescribed conduct occurs. It was argued that, read in its statutory context including by reference to the explanatory memorandum quoted earlier, s.46PO(3A) should be understood to be a means to ensure that only those allegations of unlawful discrimination which have reasonable prospects of success are litigated.
In support of that argument, the applicant referred to what was said to be an analogous provision in a State Act, s.96 of the Anti-Discrimination Act 1977 (NSW), which provides:
96 Leave of Tribunal required for inquiry into certain matters
(1)A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.
(2)An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal.
(3)Subsection (2) does not affect the operation of section 38 (Procedure of Tribunal generally) of the Civil and Administrative Tribunal Act 2013 in relation to evidence given before, or findings made by, the Industrial Relations Commission.
The procedure under s.93A(1) of the NSW Anti-Discrimination Act is analogous to the complaint termination procedure under the AHRC Act. The “Tribunal” is the NSW Civil and Administrative Tribunal which determines whether a complaint of relevant discrimination is made out and whether relief should be ordered.
The applicant referred to the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 and its subsequent appeal, Jones v Ekermawi [2009] NSWCA 388, and submitted that the following principles with respect to the application of s.96 of the Anti-Discrimination Act could be distilled from those decisions:
a)the discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme;
b)the question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case; and
c)in deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s.92.
The applicant argued that those concepts were appropriate to the exercise of the Court’s discretion under s.46PO(3A).
It was also submitted that the policy underlying s.46PO(3A) was to limit litigation under the DD Act and similar statutes to matters having reasonable prospects of success. The applicant argued that her allegations did have such prospects in that:
a)she had a disability for the purposes of s.5 of the DDA,
b)the respondent was aware of this disability;
c)she was dismissed for a reason including the disability;
d)she was dismissed for a reason relating to the disability; and
e)reasonable adjustments could have been made by the respondent but were not.
It was argued by the applicant that the fact that the matter had been to the FWC and had undergone conciliation there was irrelevant as the matter had not been determined at the FWC and in any event all she had done was to engage available consensus-based dispute resolution procedures.
Respondent
The respondent argued that an employee who has been dismissed has three potential but generally mutually exclusive avenues for redress:
a)an unfair dismissal claim in the FWC;
b)a general protections claim, initially in the FWC then in a court; or
c)a discrimination complaint, initially in the AHRC then in a court.
The respondent submitted that before granting leave to commence this proceeding the Court would need to be positively satisfied that it was appropriate to do so, arguing that the prima facie position was that proceedings requiring leave to proceed would not be entertained. The respondent submitted that the following matters are relevant to whether the applicant should have leave to proceed:
a)whether an explanation has been given as to why the prohibited circumstances have arisen;
b)any prejudice likely to flow to the respondent from a grant of leave although the mere absence of prejudice would not be enough to justify the grant of leave; and
c)the extent to which the substantial application had merit.
The respondent submitted that the application for leave should be refused because:
a)the subject matter of the complaint to the AHRC was substantially the same as that of the claim made in the FWC;
b)the applicant had given no explanation for having commenced “multiple proceedings” in the sense of having filed first in the FWC and secondly in the AHRC;
c)the AHRC had terminated the applicant’s complaint to it because the FWC had already dealt with it and regard should be had to that reasoning; and
d)the application for substantive relief did not have reasonable prospects of success.
It was contended that the Court would not be satisfied that the claim had reasonable prospects of success because, it was argued, the applicant’s draft statement of claim failed to:
a)identify the alleged causative link between the applicant’s asserted disabilities and the dismissal;
b)identify the comparator said to be in circumstances the same as or not materially different from those of the applicant; and
c)identify how the alleged reasonable adjustments would have had the effect of putting the applicant in circumstances the same as or not materially different from those of a second comparator.
CONSIDERATION
Breadth and limits of the discretion in s.46PO(3A) of the AHRC Act
For the purposes of this case, the relevant object of the AHRC Act is to provide individuals with the right to litigate certain claims of unlawful discrimination subject, in most of those matters, to obtaining leave to proceed under s.46PO(3A). The AHRC Act specifies no criteria by reference to which the discretion to grant leave to proceed is to be exercised.
In Salido v Nominal Defendant (1993) 32 NSWLR 524 the NSW Court of Appeal relevantly considered a similar discretionary power found in s.52(4) of the Motor Accidents Act 1988 (NSW) which relevantly provided that:
A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.
Chief Justice Gleeson observed at 530 that as the provision in question disclosed no positive indication of the considerations on which a grant or refusal of leave was to depend, the limits of the discretion were to be found in the subject matter, scope and purpose of the statute. After making observations on the usual purpose of limitation periods, Gleeson CJ examined other cases involving provisions similar to s.52(4) of the Motor Accidents Act and concluded that such provisions create a general discretion which is to be exercised in favour of an applicant whenever justice requires it. The Chief Justice also observed that leave would not be granted if it would be futile to do so because the proceeding would fail even if it were allowed to proceed. His Honour therefore disapproved of the primary judge’s holding that:
… leave of the court should not be given lightly and … claimants must show something truly special or extraordinary before leave should be given. (quoted in Salido at 530)
on the basis that it added a gloss to the statute which altered its meaning and effect. Relevantly for this case, Kirby P also expressed the view that the ultimate question was whether it was just to exercise the discretion in favour of the applicant. Powell JA agreed that the court had to determine whether, having regard to all the circumstances of the case, it would be fair and just to grant the application.
In this case, the discretion provided by s.46PO(3A) of the AHRC Act is similarly unfettered subject to the subject matter, scope and purpose of that Act. Reference to the relevant purpose of the AHRC Act has already been made.
An indication of the purpose of s.46PO(3A) can be found in the fact that the sub-section focusses on the matter which an applicant seeks to litigate, rather than on any default on an applicant’s part. For that reason, I reject the respondent’s submission that:
the purpose of the provision is to enable the court to do justice between the parties, and may be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant (References omitted)
to the extent that it contends that leave is to relieve against the consequences of some non-compliance by an applicant. The need for leave does not arise out of a failure to comply with any rule or requirement but simply out of the reasons for the termination of the antecedent complaint to the AHRC.
Section 46PO(3A) imposes a requirement for leave on complaints which have been terminated under s.46PH(1)(a)-(g), (1B)(a) and (1C) of the AHRC Act, ie matters which the AHRC considered should be or had been dealt with more appropriately elsewhere, appeared to lack merit or had not been made promptly. It should be noted in this connection that s.46PO(3A) does not require leave in matters which cannot be resolved by conciliation (ss.46PO(3A)(c) and 46PH(1B)(b)) or which involve an issue of public importance (ss.46PO(3A)(b) and 46PH(1)(h)). Specific provision for those matters implies that they will not display in a material way any of the negative characteristics which would otherwise permit or require termination under s.46PH, a conclusion that is supported by the explanatory memorandum quoted earlier.
Section 46PO(3A) gives the Court an opportunity at the earliest point to assess whether matters which the AHRC thought weak, or unmeritorious for other reasons, should proceed any further. It should be concluded that its purpose is to allow the Court to make its own early assessment of those matters so that ones which lack sufficient merit, whether because of the weakness of the proposed application for substantive relief or because of other circumstances, are not litigated.
Guidelines for the exercise of such a discretion
Merits of the proposed application for substantive relief
It was often sufficient in the past, when arguing that a matter had sufficient merit to proceed, for a person such as the applicant in the present case to demonstrate that the case was arguable. However, by statutory intervention, proceedings in this Court are now liable to summary dismissal if they do not have a reasonable prospect of succeeding: s.17A(2) of the Federal Circuit Court of Australia Act 1999 (“FCCA Act”) and r.13.10 Federal Circuit Court Rules 2001. In light of those provisions, the “reasonable prospect of success” test is the appropriate one to apply when deciding whether the merits of the proposed application for substantive relief are sufficient to justify it being considered by the Court, a conclusion also supported by the terms of the explanatory memorandum quoted earlier.
The circumstances in which it may be concluded that a proposed application for substantive relief has no reasonable prospect of success have been considered in several cases in the context of summary dismissal applications under s.17A of the FCCA Act and the analogous provision in the Federal Court of Australia Act 1976, s.31A. In Spencer v Commonwealth (2010) 241 CLR 118, the plurality held that no paraphrase of the expression “no reasonable prospect” can be adopted as sufficient explanation of its operation, let alone as a definition of its content, saying:
… full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. (per Hayne, Crennan, Kiefel and Bell JJ at 141 [60])
Their Honours were of the view that the elucidation of the term would best proceed by decided cases giving it content over time, noting that it was already apparent that authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 could not be relied on to define the scope of the term. In a separate decision, French CJ and Gummow J identified circumstances in which a finding that a case lacked reasonable prospects of success would not reasonably be available. Their Honours said:
Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent 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 s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact. (at 132 [25]-[26]) (References omitted)
Their Honours were referring to the speech of Lord Hope of Craighead in Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 where his Lordship said, amongst other things:
In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. (at 261 [95])
Chief Justice French and Gummow J made it clear that there are circumstances where, through the Court’s inability at an interlocutory stage to be confident that a case does not have reasonable prospects of success, however that test might be satisfied in the context of a particular matter, it would not be appropriate to dismiss the case on that basis (at 133-135 [31]-[34]). Their Honours had also referred earlier to what Lindgren J said in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 309 [47]:
[E]vidence may disclose that a person has or may have a “reasonable cause of action” or “reasonable prospects of success”, yet the person’s pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s.31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.
In Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256, Reeves J said:
… authorities reveal that the determination of a summary dismissal application … does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. …
Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.
Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel. (at 271-272 [46]-[48]).
Whether a proposed application for substantive relief has a reasonable prospect of success will be a matter for judgment based on the circumstances of the particular case.
Justice and equity
The weight to be given to the finding on whether a proposed application for substantive relief has a reasonable prospect of success will also be a matter for judgment based on the circumstances of the case. In Salido v Nominal Defendant Gleeson CJ and Kirby P explained that justice and equity were the touchstones for the exercise of a discretion such as the present one. As a result, judgment on where the merits, in terms of justice and equity, lie in a particular case may be grounded on a variety of considerations and it will only be after a consideration of all those matters that a decision can be made on whether leave to proceed will be granted.
In considering the justice and equity of the situation, the question whether the proposed application for substantive relief has a reasonable prospect of success will be only one of the matters to consider, albeit a decisive one if it is quite lacking in that respect.
Issues raised in this case
Merits of the proposed application for substantive relief
The arguments made by the respondent in support of its contention that the applicant’s draft statement of claim does not have a reasonable prospect of success raised the following matters.
Is obesity a disability?
The draft statement of claim alleges that at the time she was dismissed, the applicant suffered from certain illnesses including “obesity”. The respondent argued that it was difficult to see how that condition would meet the definition of disability in s.4 of the DD Act. However, that is not the allegation. Rather than contending that obesity is a disability, the relevant allegation instead serves only to set out the factual basis and background for the allegations of disability which are set out later in the pleading.
I acknowledge that the applicant’s affidavit speaks of those illnesses as disabilities, a position which seemed also to be adopted in her address to the Court, but the proposed pleading is the document which sets out the case in respect of which the applicant seeks leave.
Certain allegations of disability were embarrassing
The draft statement of claim alleges that the applicant’s pleaded illnesses caused her to suffer the following disabilities:
a.physical impairment being restricted movement which was a partial loss of her bodily function;
b. the malfunction of part of the Applicant's body;
c. ongoing limited fatigue due to added weight;
d. decreased flexibility in joints;
e. increased risk of knee and back pain;
f. low blood pressure;
g.increased risk of type II diabetes, cancers, high blood pressure, sleep apnoea, respiratory problems, gynaecological problems and stroke.
The respondent submitted that the claims concerning low blood pressure, high blood pressure and increased risks of developing diabetes and sleep apnoea were embarrassing. That contention remains to be made out but, even if it were, it would not affect the availability of the other allegations of disability or show that the claim lacked a reasonable prospect of success.
Essential allegations missing
The respondent submitted that the draft statement of claim does not address the requirements of the DD Act’s definition of disability in that it does not identify any differential treatment allegedly suffered by the applicant or identify a comparator whose treatment would have been different from the applicant’s. In fact, in para.29 of the draft statement of claim it is pleaded that:
29. The Respondent's conduct in:
a. standing down the Applicant for 5 business days; and
b. dismissing the Applicant on the 21 August 2017;
contravened sections 5(1) and 15(2) of the DDA by treating the Applicant, because of her disabilities and or the imputed disabilities, in a manner less favourable than other employees without the disability, in circumstances that were not materially different.
Contrary to the respondent’s submission, that allegation does contend differential treatment. The extent to which such treatment was different from that experienced by employees without the applicant’s claimed disabilities and what characteristics such persons might have are matters for evidence. It could not reasonably be said that the applicant’s chances of proving those allegations, or even only one of them, are so slight that she should not be permitted to make the attempt.
No allegation of nexus between disability and reason for dismissal
The next submission by the respondent was that the draft statement of claim lacked an allegation that the applicant’s falls, which it said were the catalyst for her dismissal, were caused by her alleged disabilities, or if they were, how they were. It appears that that argument mischaracterizes the situation. The limited evidence presently available to the Court suggests that the applicant was dismissed because of the risk that she would fall in the future, not because she had fallen in the past. More relevantly, that is the allegation made in paras.25-28 of the draft statement of claim. As to the link between the applicant’s risk of falls and her alleged disabilities, para.28 of the draft statement of claim alleges a sufficiently arguable link by saying:
28.… the Respondent had also imputed on the Applicant a disability within the meaning of section 4 of the DDA.
Particulars
i.the Respondent imputed that Applicant had current health issues;
ii.because of that imputation it was further imputed she had limited mobility with a risk of ongoing falls.
It will be recalled that the applicant alleged that one of her disabilities was “physical impairment being restricted movement”.
Link between the alleged disabilities and the alleged reasonable adjustments was just speculation
Paragraph 30 of the draft statement of claim pleads:
30.The Respondent contravened sections 5(2) and 15(2) of the DDA by not making or proposing to make any reasonable adjustments for the Applicant and the failure to not make or propose to make the following reasonable adjustment(s) had the effect of the Applicant's being treated less favourably than other employees without the disability and or the imputed disabilities, in circumstances that were not materially different:
a.Failure to make a return work [to] plan in consultation with the Applicant,
b.Failure to make a return to work plan based on further medical advice from specialist orthopaedic surgeon and/or mobility or movement clinical specialist, rehabilitation specialist or return to work clinical specialist;
c.providing the Applicant additional rest breaks;
d.providing the Applicant a different type chair;
e.limiting the Applicant's day to day movement on foot;
f.provide the Applicant further time to ascertain her health status;
g.provide the Applicant a walking aid;
h.reviewing and if necessary adjusting the performance requirements of the Applicant's work duties; and
i.arranging flexibility in work hours.
The respondent submitted that any connection between those adjustments and the applicant’s disabilities, together with her falls at work, was purely speculative, while the allegation concerning a walking aid was contrary to the applicant’s own affidavit evidence that she did not need any such walking aid. This submission sets up an irrelevant test. The relevant test is, in broad terms, whether it is more than fanciful that the allegations in question, if proved, could support a cause of action and whether it is more than fanciful that evidence might be available to prove those allegations. It appears to me, without having reached a view on the ultimate likelihood of the evidence being available and the allegation being proved, that there is a more than fanciful chance that they will be.
It was also submitted that the draft statement of claim did not disclose a basis on which it could be concluded that the failure to make reasonable adjustments led to the applicant, by reason of her disabilities, being treated differently from the way a person without the disabilities would have been treated. However, that is also a matter for evidence.
Conclusion on the merits of the proposed application for substantive relief
It cannot be known from the slight material before the Court whether the applicant would be likely to enjoy success in making out her allegations against the respondent. However, I do find that there exist between the parties real questions of fact to be tried and that there are no intractably impenetrable legal barriers apparent at this stage which would prevent the applicant from obtaining relief if she makes out the facts she alleges.
Other matters
Presumption that leave is not to be granted?
The respondent’s argument that s.46PO(3A) should be read as requiring an applicant to displace a presumption that leave is not to be granted should not be accepted. There is nothing in the terms of s.46PO(3A) or the AHRC Act more generally which suggests the existence of such a presumption. The exercise is simply one of weighing the justice and equity of the situation without bringing any preconceptions to bear on that process. The presumption for which the respondent contends would, to my mind, impose a gloss on the statute which would impermissibly alter its meaning and effect.
Explanation of prohibited circumstances
No explanation by the applicant of “prohibited circumstances” is required because there are no such circumstances in this case. As observed earlier, the requirement for leave to proceed is a concomitant of the reason the AHRC terminated the complaint made to it, not of any failure on the applicant’s part. The respondent contended that:
While an explanation is not a pre-condition to the exercise of jurisdiction … the absence of any explanation, in circumstances where the General Protections Application and the complaint to the Australian Human Rights Commission were the same, is a factor that strongly points against the grant of leave.
It was not explained why the pursuit of available rights before the administrative bodies in question should limit an applicant’s right to litigate in a court. I am not persuaded that, at least in this case, it does or should.
Complaint to AHRC duplicated proceeding in FWC
I also see no basis for the submission that the applicant has to explain why she filed first with the FWC and then with the AHRC. By virtue of ss.725, 727(1) and 732 of the FW Act, an applicant is not permitted to make a complaint to the AHRC about a dismissal from employment if he or she has already complained to the FWC about the dismissal and that proceeding is pending: RailPro Services Pty Ltd v Flavel at 458 [120]-[121]. It was not suggested that this was such a case but, even if it had been, the FW Act does not purport to make such a complaint to the AHRC a nullity or to deprive the Court of jurisdiction to entertain proceedings arising out of a termination by the AHRC for breach of s.725 of the FW Act. Indeed, the AHRC Act contemplates as possible the of bringing of proceedings such as this one in those circumstances: see ss.46PH(1)(g) and 46PO(1).
The Court’s relevant concern is that an applicant not come to the Court seeking to be compensated twice for the same dismissal: ss.725, 728 and 732 of the FW Act, not that she may have sought outcomes from administrative bodies, except to the extent that doing so may be a condition precedent to commencing a particular proceeding. It must not be forgotten in connection with this criticism of the applicant that the FWC and the AHRC operate in different areas of the law and are concerned with different statutory regimes, albeit that employment-related conduct can engage both of them.
Following the completion of a proceeding in the FWC or a complaint in the AHRC, an applicant is entitled to bring an application to the Court and the only relevant restriction is that he or she not bring more than one application in relation to a particular dismissal. As long as an applicant does not do that, the route he or she takes to the Court is likely to be of no concern to the Court on the basis that he or she is entitled to pursue all reasonable and available avenues in order to have his or her concerns addressed.
I am not persuaded that the applicant’s conduct in going first to the FWC and then to the AHRC should sound against her in this leave application.
AHRC’s reasons for termination of complaint
Contrary to the respondent’s submissions, the reasons for the AHRC’s termination of the applicant’s complaint are, in the circumstances of this case, of no assistance in determining whether leave to proceed should be granted. As noted, it is not suggested that the applicant’s complaint to the AHRC was made in breach of s.725 of the FW Act. Consequently, assuming the correctness of the AHRC’s conclusion that it was open and appropriate to terminate the complaint on the basis that it had been adequately dealt with by the FWC, the termination of the complaint for that reason speaks only of the applicant’s rights before the relevant administrative bodies. It does not say anything about the applicant’s rights before the Court or, specifically, about whether she should be denied leave to seek relief under the DD Act and be obliged to focus instead on what rights she may have under the FW Act.
I conclude that the AHRC’s reasons for terminating the complaint made to it have no material relevance to the present enquiry.
Prejudice
The respondent submitted:
The statutory schemes of the AHRC Act and the Fair Work Act show a clear intent that an employer who has been a respondent to one claim for a remedy in relation to a dismissal should not generally be put to the effort and expense of responding to a second such claim.
In this case the prejudice to the Respondent is in being required to respond to both the General Protections Application and this complaint. (References omitted)
For the reasons already given, I do not agree that that is a correct reading of the legislation in question. The fact that the applicant approached both the FWC and the AHRC was a matter for those bodies. The Court’s concern is that the applicant does not seek relief for the same dismissal under both the FW Act and the DD Act.
As a result, I do not accept that the respondent would suffer any relevant prejudice were leave to proceed to be granted.
Conclusion on other matters
Even if they were the only considerations relevant to the present application, the “other matters” raised with the Court would not persuade me that it would be appropriate to refuse the applicant the leave she seeks.
CONCLUSION
Having regard to all that was put by the parties, I believe that the justice and equity of the situation favours a grant of leave. In that regard, I attach great significance to the fact that the applicant’s claim does not lack reasonable prospects of success according to the authorities’ explanation of the meaning of that expression and note that the other arguments made by the respondent have been unavailing.
The applicant will have leave to file the draft statement of claim annexed to the affidavit of her solicitor, Mr Aslanian, affirmed 2 October 2018. However, as the applicant has already filed a statement of claim without leave, the new document should be retitled “amended statement of claim”. There will also be consequential orders.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 8 January 2019
CORRECTIONS
Paragraph 22 line 4 – the word “seen” after the word “was” has been deleted.
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