Eastman v Shamrock Consultancy Pty Ltd - [2018] FCCA 3436

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
Jones v Ekermawi [2009] NSWCA 388
Salido v Nominal Defendant (1993) 32 NSWLR 524
Spencer v Commonwealth (2010) 241 CLR 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1
White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3436
Decision Date: 29 November 2018

CaseChat Overview and Summary

Eastman applied to the Federal Court for leave to commence proceedings against Shamrock Consultancy Pty Ltd, alleging unlawful discrimination. The application was made under section 46PO of the *Australian Human Rights Commission Act 1986* (Cth).

The primary legal issue before the Court was to determine the criteria and considerations relevant to granting leave under section 46PO(1) of the Act. This involved assessing whether the applicant had demonstrated a sufficient basis to warrant the commencement of a proceeding in the Federal Court, rather than the matter being resolved at the conciliation stage within the Australian Human Rights Commission.

Judge Cameron considered the purpose of section 46PO, which is to act as a filter to prevent unmeritorious or vexatious claims from proceeding to litigation. The Court noted that while the threshold for granting leave is not high, the applicant must still present a case that has a real prospect of success. This involves demonstrating that the alleged conduct falls within the scope of the relevant anti-discrimination legislation and that there is evidence to support the claim of unlawful discrimination. The Court emphasised that the leave application is not an opportunity to conduct a full hearing of the merits of the discrimination claim, but rather to determine if there is a prima facie case that warrants further judicial scrutiny.

The Court granted leave to Eastman to commence proceedings, finding that the applicant had met the threshold required by section 46PO.

Orders