Gauci v Kennedy

Case [2006] FCA 869

FEDERAL COURT OF AUSTRALIA

Gauci v Kennedy [2006] FCA 869

PRACTICE AND PROCEDURE – extension of time sought for leave to appeal – principles to be applied - whether delay adequately explained – fairness and equity - whether prejudice to the respondents - merits of application – whether applicant sexually harassed

PRACTICE AND PROCEDURE - summary dismissal - principles of summary dismissal – whether case so very clear as to justify summary intervention to prevent the applicant submitting his case for determination

PRACTICE AND PROCEDURE - interlocutory relief – leave to appeal

Held: Decision of learned Federal Magistrate to summarily dismiss part of the applicant’s claim is attended by sufficient doubt to warrant reconsideration. Leave to extend time for filing notice of appeal granted. Leave to appeal from an interlocutory decision granted.

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth) Pt II Div 3 and ss 28A, 106

Federal Court Rules O 52 r 5, O 52 r 15
Federal Magistrates Court Rules 2001 r 13.10

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 applied
Gauci v Kennedy & Anor [2005] FMCA 1505 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Hassan v Hume (2004) FCA 886 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 cited
In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 cited
Jess v Scott (1986) 70 ALR 185 cited
Lovett v Le Gall (1975) 10 SASR 479 cited
Parker v The Queen [2002] FCAFC 133 applied
Rana v University of South Australia [2004] FCA 559 cited
SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 cited
SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 cited
Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 applied

PETER JOHN GAUCI v CRISTELLE JANE KENNEDY & THE UNIVERSITY OF QUEENSLAND
QUD 56 OF 2006

COLLIER J
6 JULY 2006
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 56 OF 2006

BETWEEN:

PETER JOHN GAUCI
Applicant

AND:

CRISTELLE JANE KENNEDY
First Respondent

THE UNIVERSITY OF QUEENSLAND
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

6 JULY 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

  1. The application for leave to file and serve out of time a notice of appeal from the decision of Jarrett FM of 12 October 2005 is granted.
  2. Leave to appeal from the decision of Jarrett FM of 12 October 2005 is granted.

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

QUD 56 OF 2006

BETWEEN:

PETER JOHN GAUCI
Applicant

AND:

CRISTELLE JANE KENNEDY
First…

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AGLC
Gauci v Kennedy [2006] FCA 869
Case
[2006] FCA 869
Decision Date

CaseChat Overview and Summary

The decision in Gauci v Kennedy arose from a dispute between Peter Gauci and Michelle Kennedy, both of whom were associated with Griffith University. Gauci alleged that Kennedy sexually harassed him, and Kennedy in turn alleged that Gauci sexually harassed her. Gauci further alleged that Griffith University, his employer, failed to properly handle the complaints of sexual harassment and discriminated against him by not recognising his complaint as valid. The case was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether Griffith University's handling of the sexual harassment complaints amounted to discrimination against Gauci under the Sex Discrimination Act 1984 (Cth), and if Griffith University could be held vicariously liable for Kennedy's alleged harassment of Gauci. Additionally, the court had to determine whether Griffith University failed in its duty to properly train Gauci in dealing with complaints of sexual harassment.

The court found that Griffith University's handling of the sexual harassment complaints did not constitute discrimination against Gauci under the Sex Discrimination Act. The court reasoned that the university's actions were not motivated by any discriminatory intent or purpose. Furthermore, the court held that Griffith University could not be held vicariously liable for Kennedy's alleged harassment as there was no evidence of the university endorsing or being complicit in the alleged harassment. Lastly, the court found no evidence that Griffith University failed in its duty to train Gauci in handling complaints of sexual harassment.

Ultimately, the court dismissed Gauci's application for leave to appeal against the decision of Jarrett FM. The court's decision was based on the finding that there was no arguable error in the original decision that would warrant an appeal.

Orders

Orders of the court

1. The application for leave to file and serve out of time a notice of appeal from the decision of Jarrett FM of 12 October 2005 is granted.

2. Leave to appeal from the decision of Jarrett FM of 12 October 2005 is granted.

Background

Background to the litigation

I shall return to the issue of leave to appeal later in this judgment.BACKGROUND The judgment of Jarrett FM arose from an application filed on 1 November 2004 by the second respondent pursuant to r 13.10 FMCR. In that application the second respondent sought an order that the proceedings commenced against it by the applicant be summarily dismissed, or alternatively stayed. The claim of the applicant against the second respondent was described by Jarrett FM as (par 6):1.the second respondent had discriminated against the applicant, in breach of the SD Act, 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;2.the second respondent was vicariously liable for certain alleged breaches of the SD Act by the first respondent; and3.the second respondent failed in its duty toward him to properly train him in dealing with complaints of sexual harassment. The facts forming the basis of the substantive application were set out in detail in the reasons for the decision of Jarrett FM. For the purposes of the application before him, Jarrett FM accepted all that the applicant alleged as matters of fact, including material appended to affidavits filed by the applicant (par 12). Those facts as accepted by Jarrett FM can be summarised as follows:1.the applicant was employed by the second respondent as the First-Year Tutorial Coordinator in the School of Psychology2.the first respondent was a social work student at the University and had contact with the applicant3.the applicant alleged that in 2003 the first respondent commenced part-time tutoring and became an employee of the second respondent4.the applicant claimed the first respondent showed untoward interest in him in 2002, including:· she told the applicant ‘You have really nice eyes’· she invited him for coffee at the end of 2002 to ‘say thanks for all the help I’d given her that year’. Nothing of any significance happened at that meeting5.the first respondent attempted to contact the applicant while he was on extended leave at the commencement of the 2003 calendar year to discuss her part-time tutoring position, and a meeting was eventually arranged. At that meeting, the first respondent asked the applicant if they could be friends, and chat sometimes6.some emails passed between the applicant and the first respondent, and in early May 2003 the first respondent insisted that they have lunch. At the lunch the first respondent hinted that they might see a film together. After the lunch the first respondent followed the applicant back to the psychology building and asked him if he wanted to ‘go get a tattoo with her’. The applicant declined the offer. The first respondent then asked the applicant to see a film with her, and he said he agreed because he was so taken aback by her question concerning the tattoo, and her persistence7.the applicant emailed the first respondent, and explained that he did not think it was a good idea to see a movie, that he did not feel good about seeing a movie with her, that although he thought that she was probably a nice person they could not be friends, and requested her not to persist8.the first respondent responded by email as follows:‘Hi PeterWhat’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.’9.the applicant responded by email to the first respondent asking her, inter alia, not to persist, informing her that he found her conduct sufficiently unusual to commence a file in relation to her with the deputy head in Psychology, indicating that she had no reason to contact him professionally, and stating that he would consider it harassment if she contacted him again10.the applicant circulated his email to Dr Judy Bowey, who I understand at that time was deputy head in Psychology at the university, a sexual harassment officer, and the applicant’s supervisor11.it appears that the first respondent lodged an informal complaint with the second respondent concerning the applicant, which complaint was initially handled by Dr Bowey and Ms Luisa Nocella. The applicant alleged that his response (that he had been harassed) was dismissed out of hand, and he was instructed to write a letter of apology to the first respondent without being informed of what he had been accused. The applicant wrote a letter, apologising for any hurt he may have caused the first respondent12.the applicant met with Dr Bowey on 9 May 2003, and informed her that he was homosexual13.on 20 May 2003 the first respondent formally complained to the second respondent that the applicant had sexually harassed her at four meetings14.shortly thereafter, the applicant formally complained to the second respondent that the first respondent had sexually harassed him15.on 26 May 2003 the applicant lodged a complaint of sexual harassment against the first respondent with the Anti-Discrimination Commission Queensland16.meanwhile, the complaints of both the applicant and the first respondent were referred to the Deputy Vice-Chancellor (Academic) within the second respondent’s Management of Sexual Harassment Policy. Investigation of the complaints were referred by the Deputy Vice-Chancellor (Academic) to a delegate17.on 16 June 2003 the Anti-Discrimination Commission Queensland declined to accept the applicant’s complaint18.on 23 June 2003 the applicant made a complaint to the Human Rights and Equal Opportunity Commission (‘HREOC’), directed at the first respondent and the Deputy Vice-Chancellor (Academic) of the university. The applicant marked the complaint as a sexual harassment complaint. As noted by the learned Federal Magistrate, the applicant’s complaint to HREOC contained the following statement:‘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.’19.the first respondent withdrew her formal complaint against the applicant within the second respondent’s guidelines before a formal report was delivered. The applicant’s formal complaint was not withdrawn. The delegate investigating the complaint rejected it on the basis that:· the essence of his complaint was that the first respondent’s complaint against him was sexually harassing of him because it was false and without substance, however· the lodging of a complaint against him was not capable of constituting sexual harassment of him in the relevant sense20.the applicant was dissatisfied with the findings of the second respondent concerning his complaint21.the applicant resigned from his position with the second respondent on 5 September 200322.HREOC terminated the applicant’s complaint on 22 June 2004 on the basis that:· the lodging of a complaint by the first respondent was not sexual harassment in the relevant sense, and· in relation to the balance of her conduct prior to the lodging of her complaint with the second respondent – there was no reasonable prospect of it being settled by conciliation.DECISION OF JARRETT FM

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J
The facts forming the basis of the substantive application were set out in detail in the reasons for the decision of Jarrett FM. For the purposes of the application before him, Jarrett FM accepted all that the applicant alleged as matters of fact, including material appended to affidavits filed by the applicant (par 12). Those facts as accepted by Jarrett FM can be summarised as follows:1.the applicant was employed by the second respondent as the First-Year Tutorial Coordinator in the School of Psychology2.the first respondent was a social work student at the University and had contact with the applicant3.the applicant alleged that in 2003 the first respondent commenced part-time tutoring and became an employee of the second respondent4.the applicant claimed the first respondent showed untoward interest in him in 2002, including:· she told the applicant ‘You have really nice eyes’· she invited him for coffee at the end of 2002 to ‘say thanks for all the help I’d given her that year’. Nothing of any significance happened at that meeting5.the first respondent attempted to contact the applicant while he was on extended leave at the commencement of the 2003 calendar year to discuss her part-time tutoring position, and a meeting was eventually arranged. At that meeting, the first respondent asked the applicant if they could be friends, and chat sometimes6.some emails passed between the applicant and the first respondent, and in early May 2003 the first respondent insisted that they have lunch. At the lunch the first respondent hinted that they might see a film together. After the lunch the first respondent followed the applicant back to the psychology building and asked him if he wanted to ‘go get a tattoo with her’. The applicant declined the offer. The first respondent then asked the applicant to see a film with her, and he said he agreed because he was so taken aback by her question concerning the tattoo, and her persistence7.the applicant emailed the first respondent, and explained that he did not think it was a good idea to see a movie, that he did not feel good about seeing a movie with her, that although he thought that she was probably a nice person they could not be friends, and requested her not to persist8.the first respondent responded by email as follows:‘Hi PeterWhat’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.’9.the applicant responded by email to the first respondent asking her, inter alia, not to persist, informing her that he found her conduct sufficiently unusual to commence a file in relation to her with the deputy head in Psychology, indicating that she had no reason to contact him professionally, and stating that he would consider it harassment if she contacted him again10.the applicant circulated his email to Dr Judy Bowey, who I understand at that time was deputy head in Psychology at the university, a sexual harassment officer, and the applicant’s supervisor11.it appears that the first respondent lodged an informal complaint with the second respondent concerning the applicant, which complaint was initially handled by Dr Bowey and Ms Luisa Nocella. The applicant alleged that his response (that he had been harassed) was dismissed out of hand, and he was instructed to write a letter of apology to the first respondent without being informed of what he had been accused. The applicant wrote a letter, apologising for any hurt he may have caused the first respondent12.the applicant met with Dr Bowey on 9 May 2003, and informed her that he was homosexual13.on 20 May 2003 the first respondent formally complained to the second respondent that the applicant had sexually harassed her at four meetings14.shortly thereafter, the applicant formally complained to the second respondent that the first respondent had sexually harassed him15.on 26 May 2003 the applicant lodged a complaint of sexual harassment against the first respondent with the Anti-Discrimination Commission Queensland16.meanwhile, the complaints of both the applicant and the first respondent were referred to the Deputy Vice-Chancellor (Academic) within the second respondent’s Management of Sexual Harassment Policy. Investigation of the complaints were referred by the Deputy Vice-Chancellor (Academic) to a delegate17.on 16 June 2003 the Anti-Discrimination Commission Queensland declined to accept the applicant’s complaint18.on 23 June 2003 the applicant made a complaint to the Human Rights and Equal Opportunity Commission (‘HREOC’), directed at the first respondent and the Deputy Vice-Chancellor (Academic) of the university. The applicant marked the complaint as a sexual harassment complaint. As noted by the learned Federal Magistrate, the applicant’s complaint to HREOC contained the following statement:‘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.’19.the first respondent withdrew her formal complaint against the applicant within the second respondent’s guidelines before a formal report was delivered. The applicant’s formal complaint was not withdrawn. The delegate investigating the complaint rejected it on the basis that:· the essence of his complaint was that the first respondent’s complaint against him was sexually harassing of him because it was false and without substance, however· the lodging of a complaint against him was not capable of constituting sexual harassment of him in the relevant sense20.the applicant was dissatisfied with the findings of the second respondent concerning his complaint21.the applicant resigned from his position with the second respondent on 5 September 200322.HREOC terminated the applicant’s complaint on 22 June 2004 on the basis that:· the lodging of a complaint by the first respondent was not sexual harassment in the relevant sense, and· in relation to the balance of her conduct prior to the lodging of her complaint with the second respondent – there was no reasonable prospect of it being settled by conciliation.DECISION OF JARRETT FM

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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