Gauci v Kennedy

[2005] FMCA 1505

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAUCI v KENNEDY & ANOR [2005] FMCA 1505

HUMAN RIGHTS – Sex discrimination – sexual harassment – vicarious liability – whether complaint of sexual harassment can be sexual harassment of itself.

Human Rights and Equal Opportunity Commission Act 1986, s.46PO(3)
Sex Discrimination Act 1984, ss.5, 14, 28A, 28F, 94, 105, 106
Federal Magistrates Court Rules 2001, r.13.10
Anti-Discrimination Act 1991 (Qld)

Applicant A135/2002 v Minister for Immigration [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677
Bender v Bovis Lend Lease Pty Ltd (2003) FMCA 277
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Chung v University of Sydney [2001] FMCA 94
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
General Steel Industries Incorporated v The Commissioner for Railways of
New South Wales (1964) 112 CLR 125
Giovanni v Wilkinson [2004] FMCA 891
Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721
Lee v Minister for Immigration [2002] FMCA 279
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
Paramasivam v Grant & Anor [2001] FCA 758
Re Morton; Ex Parte Mitchell Products Pty Ltd (1996) 21 ASCR 497
Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160
SZBBL v MIMIA (2004) FMCA 185
SZBWF v Minister for Immigration [2004] FMCA 83
Tardy v Secretary of the Department of Community Services and Health
(9 October, 1990, SC(NSW), 4015 of 1989, unreported)
Travers v State of NSW (2000) FCA 1565
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department [1999] FCA 365
Yo Han Chung v University of Sydney [2002] FCA 186

Applicant: PETER JOHN GAUCI

First Respondent: CRISTELLE JANE KENNEDY

Second Respondent: UNIVERSITY OF QUEENSLAND

File Number: BRG427 of 2004

Judgment of: Jarrett FM

Hearing date: 6 December, 2004

Date of Last Submission: 6 December, 2004

Delivered at: Brisbane

Delivered on: 12 October, 2005

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr Reed

Solicitors for the First Respondent: Woods Prince

Counsel for the Second Respondent: Mr Bradley

Solicitors for the Second Respondent: Brian Bartley & Associates

ORDERS

1. That the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act1984 be dismissed;

2. That otherwise the second respondent's application filed on 1 November 2004 be dismissed;

3. Adjourn all outstanding applications for directions to 9.30am on

   
   

   24 October 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG427 of 2004

PETER JOHN GAUCI

Applicant

And

CRISTELLE JANE KENNEDY

First Respondent

And

UNIVERSITY OF QUEENSLAND

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 10 August, 2004 the applicant seeks orders under the Human Rights and Equal Opportunity Commission Act 1986 (“HREOCA”) that the first and second respondents apologise to him and that they pay him financial compensation. He claims that the respondents have breached the Sex Discrimination Act 1984 ("the SDA").

2. By an application filed on 1 November, 2004 the second respondent applies for an order that the proceedings against it be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 ("FMCR").  Alternatively, the second respondent claims an order that the application against it be stayed pursuant to the same rule.

3. Although the first applicant was permitted to be heard on the second respondent's application, no relief is sought by the first respondent in this interlocutory application.

The principal application

1. On 4 October, 2004 I ordered that the applicant file and serve a statement of facts for which he contends and a statement of the principles of law by reason of which he contends the second respondent is liable to him.

2. The applicant filed the required statements on 18 October, 2004.  He has also filed two affidavits, one on 10 August, 2004 and the second on 30 November, 2004.  Those statements, affidavits and annexures to the affidavits comprise the whole of the applicant's material before me.

3. Although I will return to the details of the applicant's claims later in these reasons, it is presently sufficient to record that his claim against the second respondent is that:

   a)it has discriminated against him, in breach of the SDA, by reason of the way in which it dealt with certain complaints of sexual harassment made by him against the first respondent and the first respondent against him;

   b)the second respondent is vicariously liable for certain alleged breaches of the SDA by the first respondent; and

   c)the second respondent failed in its duty toward him to properly train him in dealing with complaints of sexual harassment.

This application

1. This application is made pursuant to FMCR 13.10.  That rule is in the following terms:

   13.10 Disposal by summary dismissal

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:

   (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or

   (b) the proceeding or claim for relief is frivolous or vexatious; or

   (c) the proceeding or claim for relief is an abuse of the process of the Court.

2. Applications such as the present are not uncommon and the principles against which they have to be decided are well settled.  The power to summarily dismiss a proceeding on the basis that the claim discloses no reasonable cause of action is a power to be exercised sparingly[1].  In discrimination cases, particular care is required[2].  Just as the rules of court governing such applications vary from court to court[3], so too do the descriptions of the test to be applied when deciding such an application.  Thus[4]:

   The power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed should only be exercised where it is inevitable that the proceeding will fail[5] and should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts.[6] 

   An order for summary dismissal should only be made where the claims are clearly untenable and cannot succeed[7] or where it is clear that there is really no question to be tried,[8] that the grounds for the application are unarguable[9] or it is a hopeless case with no chance of success[10].

   [1] General Steel Industries Incorporated v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 129 - 130; Webster v Lampard (1993) 177 CLR 598

   [2] Paramasivam v Grant & Anor [2001] FCA 758; Chung v University of Sydney [2001] FMCA 94

   [3] compare the rules dealt with in General Steel Industries Incorporated (above), Dey v Victorian Railways Commissioner (1949) 78 CLR 62 with FMCR 13.10, Federal Court Rules O11 r16 and O20 r 2

   [4] according to Driver FM in SZBBL v MIMIA (2004) FMCA 185

   [5] See Webster v Lampard (above) at [611], per Mason CJ, Deane and Dawson JJ

   [6] See General Steel Industries Inc v Commissioner for Railways (above)

   [7] See Lee v Minister for Immigration [2002] FMCA 279 at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J

   [8] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]

   [9] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194

   [10] SZBWF v Minister for Immigration [2004] FMCA 83 per Barnes FM at [25]

3. Another formulation of the principles is to be found in McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 where Weinberg J reviewed the authorities and continued:

   They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.

4. Special considerations apply in cases involving self-represented litigants. 

   In Re Morton; Ex Parte Mitchell Products Pty Ltd (1996)

   
   

   21 ASCR 497 at 513 - 514 Sackville J considered the authorities and accepted the following passage from the judgment of Tardy v Secretary of the Department of Community Services and Health (9 October, 1990, SC(NSW), 4015 of 1989, unreported) at 2 - 4:

As was said in Wentworth v Rogers (No 5) 6 NSWLR 534 at 536:

"Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill- expressed and unstructured statement of the legal claims sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the court from examining any merits of the case, once the statement of claim is struck out."

On the other hand the Court "must...have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources" (Corporate Affairs Commission v Solomon, Court of Appeal, unreported, 1 November 1989 per Mahoney AP).

The general approach which a Court should take to proceedings involving a litigant in person is explained in the following passages from the judgements in Rajski v Scitec Corporation (Court of Appeal, unreported, 16 June 1986):

'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one gist of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.' (per Samuels JA).

'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done." (per Mahoney JA).

1. Put another way: "In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant"[11].

   [11] Chung v University of Sydney (above) at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186.

The applicant's claims

1. I set out below the facts alleged by the applicant and his claims.  For the purposes of this application, I accept all that the applicant alleges as matters of fact.  It is against the facts that he alleges that I must determine this application.  The facts relied upon by the applicant appear from various sources.  Appended to his affidavits is a considerable quantity of documents to which I have had regard, and from which I have drawn many of the facts set out below.

2. At the relevant time, the applicant was the First-Year Tutorial Coordinator, School of Psychology, at the University of Queensland.  The first respondent was a social work student and had contact with the applicant regarding academic matters such as the viewing of her completed examination papers and the processing of requests for extension of assignment deadlines. 

3. The applicant alleges that in 2003 the first respondent took on some part-time tutoring "with Student Support Services" at the University and thereby became an employee of the second respondent.

4. The second respondent has a policy concerning, inter alia, sexual harassment, but the details of the policy are not in evidence.

5. The applicant claims that his troubles began in 2002 when the first respondent, then a first year student, showed untoward interest in him.  She met with him sometime in 2002 to review an examination paper.  After the meeting finished and the first respondent had left the applicant's office, she returned about two minutes later and said: "You have really nice eyes".  She then left.  The applicant reported the incident to his supervisor Dr Judy Bowey, who advised him to keep a record of the occurrence.  This was not the first time a student had shown some interest (other than academic) in the applicant.  He had cause to keep records in respect of two other female students in particular during his employment with the second respondent.

6. According to the applicant, the next relevant meeting between the applicant and the first respondent occurred at the end of 2002.  The first respondent called on the applicant and invited him for coffee to "say thanks for all the help I'd given her that year".  Nothing of any significance happened at that meeting which took place in the University Refectory.  The applicant "suspected [the first respondent] might come back [in 2003] and 'proposition' me, but also hoped she'd just move on".

7. The applicant had extended leave at the commencement of the 2003 academic year.  While he was away, the first respondent tried to contact him by email so as to meet with him to discuss a position she had recently taken up with an organisation called UQLink.  It is not clear if that is the same employment as the tutoring the first respondent is alleged to have commenced with Student Support Services.  Eventually, a meeting was arranged between them.

8. At that meeting the first respondent asked the applicant if they could be friends.  The applicant asked her what she expected of him, to which she replied, "nothing much, just to chat sometimes".  They went for coffee.  The first respondent told the applicant she had a voucher for free pizza and they should "have lunch sometime".

9. Some emails passed between the applicant and the first respondent.  In early May, it seems, the first respondent turned up in the applicant's office and insisted that they utilise her pizza voucher for lunch.  The applicant agreed to have lunch – he says because she was clearly not going to go away.

10. A lunch meeting over pizza took place between the applicant and the first respondent, but the precise date is difficult to determine.  The conversation appears to have been unremarkable.  The first respondent hinted that she and the applicant might see a movie together.

11. After lunch, the first respondent followed the applicant back to the psychology building.  He tried to lose her by visiting a colleague, but when he had waited what he considered to be a sufficient time to ensure the first respondent's departure, he emerged only to find her waiting for him.  She followed him to his office and asked him if "I wanted to go get a tattoo with her".  The applicant says he was shocked and declined the offer.  She then asked the applicant to see a movie with her.  He agreed, but he says he did so because he was so taken aback by her first question and her persistence – "I was frankly too stunned to say anything other than, OK…".

12. On the afternoon that the applicant and the first respondent were to see a movie, the applicant emailed the first respondent in the following terms:

    “Hi Cristelle,

    I’ll give your work a ring today just in case you don’t read this beforehand, but I don’t think it’s a good idea we see a movie tonight.  I don’t like to cancel on people but I don’t feel good about seeing a movie with you, so cancelling is the right thing to do.

    You saw and commented on how worried I looked when you asked if we could be friends.  For me, it’s unusual for a student to throw this at me and the whole situation is just uncomfortable.  To be honest I never thought it would work, but I’ve met you for coffee and lunch and feel I’ve given it a fair go – and it’s definitely not working for me.

    You’re probably a nice person, but we can’t be friends.  Please don’t persist with this.”

13. The first respondent's response was in two parts and was as follows:

    “Hi Peter

    What’s your problem?  In my honest opinion I just think you are scared of actually getting to know someone (especially someone who is actually intelligent).  I want you to outline for me all the reasons why you don’t want to get to know me – the ones below are not sufficient.  In saying that you’ve given it a fair go, well you haven’t.  Maybe you feel uncomfortable with me because of your own insecurities, but really it’s unfair on me (I can’t help it if you are grappling with issues).  I’m not asking a lot of you.  If I wanted to “jump you” I would have done it a lot sooner than this.  I honestly do not see why you are doing this (and I’m actually quite upset).  As for persisting, well I’m not one to go down without a fight.  If I wanted to make your life hell I could, but as far as things go currently, I need you to explain it in intricate detail.

    Please respond to this.”

    “Just remembered another thing to say – in order to “dump me off” like this you need to do it face to face sending an email is a cowardly way of doing it.  For once in your life stand up and be a man – face your responsibilities.  Oh and by the way – I’m not a student doing psychology (maybe you’ve forgotten that) so please refrain from using that as an excuse because it’s not going to stick.”

14. The applicant responded and circulated his email to Dr Bowey, who was apparently a sexual harassment officer with the second respondent.  She was also the applicant's supervisor.  That email was in the following terms:

    “Cristelle – I’ve asked you not to pursue this.  It’s a simple fact of life that people have different personalities and they’re not all suited to be friends with each other.  That’s all there is to it.

    I feel I should inform you that I found your behaviour unusual enough last year to start a file on you with the deputy head in psyc (Dr Judy Bowey).  Now when you turned up this semester and suggested we be friends, I allowed for the slight possibility I might be wrong and met with you a couple of times on campus but outside of the office, but those interactions only reinforced my initial impressions.  I tried dropping lots of hints, I ignored your emails, I even tried being rude but you have persisted.  And now since you’ve included a threat in this email that may be aimed at me professionally, I’ve CC’ed this to Judy so this is back on record.

    I grant that I made a mistake agreeing to see a movie with you, and I made the right choice in cancelling.  To be honest, you shocked me with your foot-in-the-door let’s get a tattoo thing, and when someone induces that level of uncertainty in me, my immediate response is to be polite, then go and run it by some other people to see what they think.  Personally, I find you to be aggressive and that’s probably what I should have told you last week.

    I’m sorry it’s come to this – I’ve tried to (sic) this nicely, but I have to inform you that professionally, you have no reason to see me in the workplace.  My duties are restricted to first-year psychology and as a second year social work student, you’ve no reason to make any contact with me, and if you do again I will consider it harassment.”

1. The applicant complains that the first respondent was able to complain about him "outside of the University of Queensland's official sexual harassment complaint process".  It is not clear what that means, but in a letter to Ms Ann Stewart, Director of The Equity Office of the second respondent dated 18 June, 2003 the applicant explains:

   “I’m pleased that the university is finally investigating this matter, but don’t understand why this didn’t happen sooner.  My reading of the relevant policy is that once the complaint is lodged with the Equity Office and the other party has responded, then a determination is made to refer the matter to mediation or to the Deputy Vice Chancellor’s office.  That didn’t happen.  It’s bad enough that when this matter was first raised with me, my guilt was assumed, I was questioned in a decidedly unfriendly fashion and then asked to write a letter of apology – and all this without even knowing what the allegations were.  Presumably, the staff involved were ignorant of the University’s policies and procedures.  Then, before I’d even had an opportunity to formally respond and present evidence, I was asked to engage in mediation.  While I hadn’t responded officially, I had previously in an email to the Equity Office explained that the allegations were false and that the complainant had threatened me several times.  The assumption behind a decision to refer this kind of matter to mediation can only be that there is some basis to the complainant’s claim.”

2. The complaint was initially handled by Dr Bowey and a Ms Luisa Nocella.  The applicant alleges that the University, and specifically, Dr Bowey and Ms Nocella dismissed his response that it was he who had been harassed out of hand and accepted the first respondent's albeit informal complaint.  The applicant alleges: "Dr Judy Bowey immediately informed me that I hadn't been harassed, and I was instructed to write a letter of apology.  I was not told what I had been accused of".

3. He says that Dr Bowey and Ms Nocella attempted to have him participate in mediation.  He was, however, unwilling to do so at that stage.  He says that Ms Bowey and Ms Nocella "acted in direct violation of University policy by trying to deal with the matter the way that they did.  Also note that neither they nor I had received any form of training from the University of Queensland related to sexual harassment and discrimination".

4. The applicant wrote the letter requested of him by Dr Bowey on 9 May, 2003.  In it he apologised for any hurt that he may have caused the first respondent by rejecting her advances.  He maintained in the letter that he had not sexually harassed the first respondent.

5. On 9 May, 2003 the applicant met with Dr Bowey.  He says she appeared concerned about him and how he was coping with the situation.  He was concerned about her and told her that he was homosexual.  He says that her reaction was a strong one and she expressed anger about the situation.  He thought she was angry about having been "taken for a ride by Ms Kennedy".

6. On 20 May, 2003 the first respondent formally complained within the second respondent's guidelines to the second respondent that the applicant had sexually harassed her.  The complaint alleged four meetings at which the applicant sexually harassed her – two meeting for coffee, one meeting in his office and a lunch meeting for pizza. 

7. Within days of the first respondent's complaint, the applicant made a complaint to the second respondent alleging that the first respondent had sexually harassed him.  The basis of his complaint was that he had "the right to ask someone to leave me alone without fear of retaliation, and that [the first respondent] abused the University's procedure to expose me to written material of a sexually explicit nature … that caused me distress".

8. On 26 May, 2003 the applicant lodged a complaint of sexual harassment against the first respondent with the Anti-Discrimination Commission Queensland[12].  He alleged that the first respondent had harassed him by her actions and what he considered to be her false complaint to the second respondent.  He sought that his complaint proceed immediately to the Anti-Discrimination Tribunal (thereby by-passing any conciliation or mediation).  He sought a written retraction of the allegations, an apology and an "admission of guilt" by the first respondent that could be published to the heads of School for Psychology and Social Work and other staff involved in the matter.

   [12] established pursuant to the Anti-Discrimination Act 1991 (Qld)

9. Meanwhile, both the first respondent's and the applicant's complaints to the second respondent were referred to Professor Margaret Gardner, the second respondent's Deputy Vice-Chancellor (Academic).  They were referred to her for determination pursuant to the second respondent's Management of Sexual Harassment Policy.  Professor Gardner delegated investigation of the complaints to Ms Karen Walters.

10. On 16 June, 2003 the Anti-Discrimination Commission Queensland declined to accept the applicant's complaint under the Anti-Discrimination Act 1991 ("the Queensland Act"). The Commission recorded that the applicant alleged sexual harassment by being required to read a complaint of sexual harassment made against him by the first respondent as part of the second respondent's grievance procedure. The Commission rejected the complaint on the basis that s.119 of the Queensland Act did "not cover situations where someone is required to read a complaint made against him/her in order to prepare a response to an internal complaint of sexual harassment.  Requiring someone to read an internal complaint of sexual harassment would not be considered conduct of a sexual nature, but rather as part of the opportunity to know the allegations made and provide a response to those allegations." The letter from the commission also noted that the applicant was unhappy with the process used by the University to deal with the first respondent's complaint but that that was not a matter the Commission could deal with under the Queensland Act.

11. On 23 June, 2003 the applicant made a complaint to the Human Rights and Equal Opportunity Commission ("HREOC").  In the complaint form he stated that he was complaining about the first respondent and Professor Margaret Gardener, both of the University of Queensland.  The applicant also says "My complaint isn't specifically related to Professor Gardner, but she is the seniormost member of staff involved in handling matters of sexual harassment at the University".  In the form of complaint, the applicant's complaint is marked as a complaint of sexual harassment.  Significantly, he says:

    "I have several complaints about the University's handling of the situation. First, the initial handling of the situation was appalling. I can believe that Ms Kennedy put on a good show for Luisa Nocella and Luisa's attitude towards me reflected a genuine belief I had done something wrong. From my own experience, I just don't think Judy Bowey reacts well in a crisis. I also take issue with the fact that the University a) failed to identify what was happening to me as sexual harassment; b) refused to treat it as such when I suggested that and c) attempted to badger me into mediation. I particularly think the repeated pressure to make me go to mediation constitutes a breach under s.105 of the Sex Discrimination Act. I had explicitly stated that I believe Ms Kennedy would only abuse mediation, using it as an opportunity to further harass me."

12. When asked to specify in the complaint form what kind of outcome would satisfy the applicant, in respect of the second respondent he said:

    "I don't know what I want from the University.  If I believed I could internally deal with the breaches of their own policy and their seeming unofficial policy of 'don't deal with it -- make it go away with mediation', I would. "

13. Ms Walters investigated the complaints on behalf of the second respondent, but on 15 July, 2003 and before she had completed her investigations, the first respondent withdrew her complaint against the applicant.  The applicant's complaint remained, however, and it was the subject of a report by Ms Walters. 

14. Professor Gardner's determination was given on 25 August, 2003.  The applicant's complaint was found to have no substance and was rejected.  It was dealt with on the basis that the gravamen of his complaint was that the first respondent's antecedent complaint was sexually harassing of him because it was false and without substance.  His complaint was rejected on the basis that the lodging of a complaint against him was not capable of constituting sexual harassment of him in the relevant sense.

15. The applicant was not happy with Ms Walter's investigation, nor with Professor Gardner's determination and made his feelings known in a letter to Professor Gardner on 27 August, 2003.

16. On 5 September, 2003 the applicant resigned his employment with the second respondent.

17. The applicant's HREOC complaint continued.  On 9 October, 2003 the second respondent provided to HREOC its response to the applicant's claims.  In that response there is a statement to the effect that it appeared that the first respondent had done some work in the School of Psychology by way of mentoring other students.  It also states:

    Mr Gauci says the women pressured him to apologise because they believed he had done wrong (sexually harassing Ms Kennedy).  Dr Bowey says, first she favoured his version but, secondly, she felt he had been insensitive in effectively jilting Ms Kennedy by e-mail.  She also wondered whether he might have said something silly but chose not to go into detail.  She said she feared an escalating row between the two which would benefit nobody and hoped that, at that early stage, assuming both Ms Kennedy and Mr Gauci acted sensibly, it should be possible to lower the temperature by each party taking a sympathetic approach.  She says that she did suggest that Mr Gauci write a letter (not an email) conciliatory in tone.  She counselled him to apologise for (1) any hurt he had caused her in effectively jilting her; (2) any unfortunate conversation if any had taken place; and (3) for any of his actions that might have been unwise if, on reflection, he could identify any.

18. The first and second respondent's responses to HREOC were sent to the applicant in April, 2004.  The Commission indicated that the first respondent was interested in conciliation.

19. The applicant responded on 28 April, 2004 with a fulsome challenge to the responses.  The offer of conciliation with the first respondent was declined.  The applicant claimed in his response concerning the second respondent that it had discriminated against him on the grounds of sex, although that claim was not elaborated upon.  An offer of conciliation with the second respondent was made.

20. The applicant's HREOC complaint was terminated on 22 June, 2004.  Part of the complaint against the first respondent was terminated because the Commission was of the view that the lodging of a complaint by the first respondent with the second respondent was not sexual harassment in the relevant sense.  The balance of his complaint against her arising out of her conduct prior to the lodging of her complaint with the second respondent was terminated because there was no reasonable prospect of it being settled by conciliation.

21. Part of the complaint against the second respondent (which is described in the notice of termination as "sex discrimination") was terminated because the Commission was of the view that there was insufficient evidence of discrimination against him.  The balance of the complaint alleging sexual harassment was terminated because there was no reasonable prospect of it being settled by conciliation.

22. In terms of discrimination, the gravamen of the applicant's claim against the second respondent appears to be that it accepted the first respondent's complaint, but rejected his on "a number of specious grounds including their belief that I, a gay man, welcomed Ms Kennedy's sexual attention".  He complains that Ms Bowey and Ms Nocella continued to deal with the first respondent's claims "despite their possession of considerable evidence to the effect that her complaint was vexatious".

23. He says that the second respondent failed to recognise that the first respondent's complaint was vexatious and harassing of him and that it was wrong to conclude that his complaint of her could be seen as he victimising Ms Kennedy.

The submissions

1. The second respondent submits that no reasonable cause of action is raised in the applicant's material. It argues that no breach of the SDA can possibly be made out on the evidence. Further, it argues that it has no vicarious liability for any acts of the first respondent. The claims of breach of duty, it is said, are not justiciable in this court.

2. The first respondent supports the second respondent insofar as the claims of vicarious liability are concerned.  She submits that there is no liability of her part and therefore, no liability on the part of the second respondent for her acts, even if she was an employee or servant of the second respondent at the relevant time.

The legislation

1. The applicant says that his claim involves ss.5, 14, 28A, 28F, 94, 105 and 106 of the SDA. Relevantly, those sections provide as follows:

   5 Sex discrimination

   (1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

   (a) the sex of the aggrieved person;

   (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

   (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

   the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

   (1A)To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

   (2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

   (3) This section has effect subject to sections 7B and 7D.

   ...

   14 Discrimination in employment or in superannuation

   (1)It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:

   (a) in the arrangements made for the purpose of determining who should be offered employment;

   (b) in determining who should be offered employment; or

   (c) in the terms or conditions on which employment is offered.

   (2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:

   (a) in the terms or conditions of employment that the employer affords the employee;

   (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

   (c) by dismissing the employee; or

   (d) by subjecting the employee to any other detriment.

   (3)Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

   …

28A Meaning of sexual harassment

(1)For the purposes 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 that the person harassed would be offended, humiliated or intimidated.

(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.

…

28F Educational institutions

(1)It is unlawful for a member of the staff of an educational institution to sexually harass:

(a) a person who is a student at the institution; or

(b) a person who is seeking to become a student at the institution.

(2)It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a) a person who is an adult student at the institution; or

(b) a member of the staff of the institution.

(3)In this section:

adult student means a student who has attained the age of 16 years.

…

94 Victimisation

(1)A person shall not commit an act of victimization against another person.

Penalty:

(a) in the case of a natural person–$2,500 or imprisonment for 3 months, or both; or

(b) in the case of a body corporate–$10,000.

(2)For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person;

(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or

(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.

(3)It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.

…

105 Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

106 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 Divison 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.

Discussion

1. Section 46PO(3) HREOCA provides:

   (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.

2. This application can only be made against parties to the original HEROC complaint: Charles v Fuji Xerox Australia Pty Ltd (2000)

   
   

   105 FCR 573, Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160. The second respondent argues that no complaint was made against the second respondent because only Professor Gardner, Dr Bowey, a Marnie King, Luisa Nocella, Ann Stewart, Dr Tony Arklay and Roger Byrom were mentioned in the complaint. Indeed, only Professor Gardner was nominated as a respondent.

3. I reject the submission that the application against the second respondent is outside that permitted by s.46PO(3) HREOCA. There appears to be no misapprehension by HREOC, the second respondent or the applicant that the complaint was, in part, about the second respondent. The second respondent responded to HREOC's request for a response to the applicant's claim.

Discrimination on the basis of sex

1. The effect of s.46PO(3) is to limit the facts that can be relied upon by an applicant to those facts considered by the HREOC: Travers v State of NSW (2000) FCA 1565; Bender v Bovis Lend Lease PTY LTD (2003) FMCA 277; Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721, Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 and Giovanni  v Wilkinson (2004) FMCA 891.

2. The second respondent alleges that no complaint of sexual discrimination was made in the complaint to HREOC, but that even if it could been seen as agitating such a claim, the only conduct alleged by the applicant against the second respondent was a failure "to identify what was happening to [the applicant] as sexual harassment" and "repeated pressure to make [the applicant] go to mediation".

3. I do not accept the second respondent's submissions on this point.  From the outset the applicant's case, although confused, has alleged sexual discrimination in that he has claimed that he has been treated in a particular way by the second respondent's agents, Dr Bowey and Ms Nocella because he was a man.  The second respondent's investigative process identified sex discrimination as one of his complaints and the report of Ms Walter's categorised the complaint as, in part, a complaint of sex discrimination.  His complaint to HREOC alleged that Dr Bowey's and Ms Nocella's attitude reflected a genuine belief that he had "done something wrong".

4. It is equally clear that the HREOC also viewed the applicant's complaint, at least in part, as one of sex discrimination.  The second respondent's response to HREOC takes issue with that proposition but then nonetheless deals with matters concerning discrimination.  A complaint of sex discrimination was terminated by HREOC.

5. The applicant's first claim is that the second respondent has discriminated against him on the basis of his sex. Having regard to the facts set out above and s.14(2) HREOCA set out above, it is apparent that the applicant's claim must be that he was subjected to a detriment by his employer. There is no question that the second respondent was the applicant's employer. There does not seem to be any suggestion from the applicant that the alleged unlawful discrimination related to the terms and conditions of his employment, denied or limited his access to opportunities for promotion, transfer or training, or to any other benefits associated with his employment. He was not dismissed from his employment.

6. The detriment identified by the applicant to which he says he was subjected by the second respondent was the conduct of Dr Bowey and Ms Nocella towards him when the first respondent made her first informal complaint.  There is no issue that Dr Bowey and Ms Nocella were employees of the University at the relevant time or that they were acting in the course of their employment[13].

   [13] arguably, therefore, s.106 HREOCA renders the second respondent vicariously liable for their acts.

7. He says that, because he is a man, he was presumed by them to be guilty of the allegations and instructed to apologise to the first respondent, although he says that he was not told what to apologise about.  The second respondent, in its response to the applicant's HREOC complaint, alleges that the applicant was counselled by Dr Bowey to apologise for (1) any hurt he had caused her in effectively jilting her; (2) any unfortunate conversation if any had taken place; and (3) for any of his actions that might have been unwise, if, on reflection, he could identify any.

8. If the applicant's case is accepted, it seems to me reasonably arguable that the second respondent, by reason of the applicant's sex or a characteristic imputed to men generally, has treated the applicant less favourably than it would have a person of the opposite sex.  He wishes to argue that the presumption of his guilt, as evidenced by the instruction to apologise and Dr Bowey's reaction when he told her he was homosexual, would not have been made if he was a woman.  He says, therefore, that he was thereby treated differently to a woman.

9. It is only unlawful for the second respondent to discriminate against the applicant in the way identified above if it also subjects him to a detriment. The applicant does not identify any particular detriment, but it seems to me that the requirement to apologise where no apology is called for could arguably be a detriment for the purposes of s.14(2)(d) HREOCA. Moreover, subjecting him to a process which does not accord with the published formal sexual harassment policy of the University, might arguably also amount to a detriment.

10. In my view, the second respondent fails to discharge the onus on it to satisfy me that I should exercise the power available to dismiss the application summarily, insofar as it alleges unlawful discrimination against the second respondent.

Sexual harassment

1. Having regard to s.28A HREOC, in my view there are no facts alleged by the applicant that could amount to any sexual harassment of the applicant by or on behalf of the second respondent or any of Professor Gardner, Dr Bowey, Marnie King, Luisa Nocella, Ann Stewart, Dr Tony Arklay and Roger Byrom. In my opinion, there is simply nothing in the facts alleged by the applicant that could possibly amount to an unwelcome sexual advance, or an unwelcome request for sexual favours, to him by any of those people. Nor is there any evidence of any unwelcome conduct of a sexual nature in relation to the applicant committed by any of those people.

2. In the circumstances relied upon by the applicant, I am not persuaded that asking the applicant to read the first respondent's complaint of sexual harassment against him, or by failing to dismiss the first respondent's complaint summarily without calling for his response was sexual harassment of him within the meaning of that term as used in the HREOCA. In this regard, the application must be dismissed.

3. The applicant further claims however, that the first respondent sexually harassed him and, because she was an employee of the respondent at the relevant time, the second respondent is vicariously liable for that harassment.

4. Assuming for the moment that the first respondent was at the material times an employee or servant of the second respondent, it seems to me that there are no facts alleged that would or could amount to sexual harassment by the first respondent of the applicant. 

5. His evidence is that the first respondent persistently pursued his romantic attention.  There is no claim in his material, however, that the first respondent subjected him to an unwelcome sexual advance or made to him an unwelcome request for sexual favours.  At best, she asked him to go for coffee on two occasions, pizza on one occasion and to a movie on a fourth occasion.  Apart from the comment made soon after their first meeting that the applicant had nice eyes, the conversation between them was unremarkable. 

6. The making of a complaint of sexual harassment against the applicant to the second respondent cannot in the circumstances relied upon by the applicant, amount to sexual harassment for the purposes of the SDA. It might be the case that the first respondent was intent on pursuing an intimate, indeed sexual, relationship with the applicant and when he spurned her she became difficult - but that is not prohibited by the Act. It might be the case that the first respondent's actions could amount to harassment within the ordinary meaning of that word, but that is not enough to establish a breach of the SDA.

7. Thus, even making the assumptions I have set out above in favour of the applicant, it seems to me that this aspect of the claim against the second respondent is bound to fail.

Other claims

1. The applicant raises what, on their face, appear to be common law claims that the second respondent failed in its duty towards him as an employee.  They are not matters within the complaint to HREOC.  There is insufficient alleged by the applicant to make out such claims and no attempt to demonstrate compliance with the requirements of the WorkCover Queensland Act 1996 (Qld) or the Workers' Compensation and Rehabilitation Act2003 (Qld). On the facts alleged by the applicant those claims ought also be dismissed.

2. For the above reasons, I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:  S. Haysom

Date:  13 October, 2005