Gauci v Kennedy - [2007] FCA 1051

FEDERAL COURT OF AUSTRALIA
Gauci v Kennedy [2007] FCA 1051
PRACTICE AND PROCEDURE – appeal from decision of Federal Magistrate summarily dismissing application – principles relating to summary dismissal – whether case so clear as to justify summary dismissal
DISCRIMINATION LAW – sexual harassment – whether his Honour erred in his determination that the alleged acts against the appellant by the first respondent could not amount to sexual harassment – vicarious liability of second respondent for conduct of first respondent not considered by court below – interpretation of s 28A Sex Discrimination Act 1984 (Cth)
Held: The case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Remitted to the Federal Magistrates Court to the extent that the Federal Magistrate found that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant.
Sex Discrimination Act1984 (Cth) Pt II Div 3
Federal Magistrates Court Rules (FMCR) r 13.10
Cooke v Plauen Holdings [2001] FMCA 91 cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
Doyle v Riley (1995) EOC 92-748 cited
Gauci v Kennedy [2005] FMCA 1505 related
Gauci v Kennedy [2006] FCA 869 related
Obieta v New South Wales Dept of Education and Training [2007] FCA 86 cited
Rana v University of South Australia (2004) 136 FCR 344 cited
re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 cited
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 cited
PETER JOHN GAUCI v CRISTELLE JANE KENNEDY AND THE UNIVERSITY OF QUEENSLAND
QUD56 OF 2006
COLLIER J
13 JULY 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD56 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

PETER JOHN GAUCI
Appellant

AND:

CRISTELLE JANE KENNEDY
First Respondent

THE UNIVERSITY OF QUEENSLAND
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

13 JULY 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of Jarrett FM delivered on 12 October 2005, that the appellant’s claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside.
3.The application be remitted to the Federal Magistrates Court for directions and determination.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD56 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

PETER JOHN GAUCI
Appellant

AND:

CRISTELLE JANE KENNEDY
First Respondent

THE UNIVERSITY OF QUEENSLAND
Second Respondent

JUDGE:

COLLIER J

DATE:

13 JULY 2007

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an appeal from a decision of Jarrett FM of 12 October 2005 (

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.

Continue reading Gauci v Kennedy

Details

AGLC: Gauci v Kennedy [2007] FCA 1051
Case: [2007] FCA 1051
Decision Date: 13 July 2007

CaseChat Overview and Summary

The case of Gauci v Kennedy involves an appeal against a decision by Jarrett FM, which dismissed a claim for relief against the second respondent for a breach of provisions in Part II, Division 3 of the Sex Discrimination Act 1984 (Cth). The appellant, Gauci, had alleged that the first respondent's conduct constituted sexual harassment. The Federal Magistrates Court ruled that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant. Gauci appealed this decision, arguing that the dismissal of his claim was unjust as it prevented him from having his case heard in full. The central legal issue in this case was whether the conduct of the first respondent constituted sexual harassment under the definition provided in section 28A of the Sex Discrimination Act 1984 (Cth). Specifically, the court needed to determine if the alleged harassment was unwelcome conduct of a sexual nature that a reasonable person would anticipate would offend, humiliate, or intimidate the appellant.

The court's reasoning focused on the need for a full hearing to adequately assess the nature of the conduct in question and its implications under the Act. The court highlighted that whether conduct constitutes sexual harassment depends on the nature or quality of the act, and this determination could only be made after considering relevant evidence and legal principles. The court concluded that the Federal Magistrate should not have summarily dismissed the claim, as there was a real question to be determined regarding whether the first respondent's conduct amounted to sexual harassment. The decision was set aside, and the case was remitted to the Federal Magistrates Court for further directions and determination. The appeal was allowed, and the dismissal of the appellant's claim was overturned.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of Jarrett FM delivered on 12 October 2005, that the appellant’s claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside.

3. The application be remitted to the Federal Magistrates Court for directions and determination.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

Consideration of the issue whether the conduct of the first respondent did constitute sexual harassment within the meaning of s 28A SD Act did, in my view, give rise to a real question to be determined between the parties. In this respect, I repeat the observations I made in Gauci [2006] FCA 869 at [44].Conclusion Having heard the submissions of the parties I consider that the case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Accordingly, in my view the learned Federal Magistrate should not have summarily dismissed the applicant’s claim against the second respondent in respect of Pt II Div 3 SD Act, to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant. The matter should be remitted to the Federal Magistrates Court to be heard in full by his Honour and determined on the submissions of the parties at trial.THE COURT ORDERS THAT:1.The appeal be allowed.2.The decision of Jarrett FM delivered on 12 October 2005, that the appellant’s claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside.3.The application be remitted to the Federal Magistrates Court for directions and determination.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

The proceedings before me do not directly involve the first respondent. However the first respondent has also filed written submissions before me, in which she denies the alleged unlawful sexual harassment and submits that as the complaint of sexual harassment against her has been properly dismissed by Jarrett FM, there is no conduct in respect of which the second respondent can be liable.Consideration of the issues While I concur with the observations of his Honour that the conduct of the first respondent could constitute harassment, I disagree with his Honour’s conclusion in Gauci [2005] FMCA 1505 at [70] that the harassment was clearly such that it did not breach the SD Act. “Sexual harassment” is defined in s 28A of the Act as follows:(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. Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238], Cooke v Plauen Holdings [2001] FMCA 91 at [25]. It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, “unwelcome conduct of a sexual nature in relation to the person harassed”. Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]). It may well be that the conduct of the first respondent was not sexual harassment; further it may be the case that, for reasons submitted by the second respondent, any liability for the conduct of the first respondent could not be visited on the second respondent. Indeed, the first respondent claimed from the bar table before me that she was not an employee of the second respondent at the material time. However evaluating comprehensive arguments and evidence of the parties to determine whether the conduct of the first respondent did constitute sexual harassment and if so, whether the second respondent could be liable for the conduct of the first respondent (an issue not canvassed by his Honour other than to formulate his reasons on the assumption that the first respondent was an employee of the second respondent at all material times) would require a full hearing of the matter. As Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:…once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD56 OF 2006

JUDGE:	COLLIER J
DATE OF ORDER:	13 JULY 2007
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD56 OF 2006

JUDGE:	COLLIER J
DATE:	13 JULY 2007
PLACE:	BRISBANE