Gill v Karan Grewal Pty Ltd (Trading as Curry Palace Indian Restaurant)
[2018] FCCA 3549
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v KARAN GREWAL PTY LTD (TRADING AS CURRY PALACE INDIAN RESTAURANT) | [2018] FCCA 3549 |
| Catchwords: HUMAN RIGHTS – Employment in Indian restaurant – applicant allegedly pregnant and injured during and when dismissed from employment – claims of alleged sex and disability discrimination – application in a case for summary dismissal. PRACTICE AND PROCEDURE – Application in a case for summary dismissal – whether claim has reasonable prospects of success – whether claim the same as claim before the Australian Human Rights Commission – whether correct employing entity named in application – whether proper pleadings necessary in human rights cases – whether claim to be re-pleaded. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO, 46PR Disability Discrimination Act 1992 (Cth), ss.5, 6, 10, 11, 21A, 21B, 24, 123 Fair Work Act 2009 (Cth), ss.74, 342 Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 18 Federal Circuit Court Rules 2001 (Cth), rr.1.05, 13.10 Federal Court of Australia Act 1976 (Cth), s.31A |
| Cases cited: Arnold v Compass Group (Australia) Pty Ltd & Anor [2014] FCCA 1999 |
| Applicant: | RAJWINDER KAUR GILL |
| Respondent: | KARAN GREWAL PTY LTD ACN 604 162 576 (TRADING AS CURRY PALACE INDIAN RESTAURANT) |
| File Number: | PEG 279 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 7 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Singh |
| Solicitors for the Applicant: | Gendeh Legal |
| Counsel for the Respondent: | Mr D Singh |
| Solicitors for the Respondent: | Friedman Lurie Singh & D’Angelo |
ORDERS
Paragraph 9 of the Amended Application is to be struck out, but otherwise the Respondent’s Application in a Case filed 14 March 2018 is dismissed.
The Applicant to file and serve a Statement of Claim by 18 January 2019.
The matter is to be listed for further directions on a date to be fixed on written application by either party to the docket Judge’s Chambers, such application to be made not before 21 January 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 279 of 2017
| RAJWINDER KAUR GILL |
Applicant
And
| KARAN GREWAL PTY LTD ACN 604 162 576 (TRADING AS CURRY PALACE INDIAN RESTAURANT) |
Respondent
REASONS FOR JUDGMENT
Introduction
An Application in a Case was filed by the respondent, Karan Grewal Pty Ltd ACN 604 162 576 T/A Curry Palace Indian Restaurant (“Curry Palace”) on 14 March 2018. The Application in a Case sought summary dismissal (“Dismissal Application”) of the application by Ms Rajwinder Kaur Gill (“Ms Gill”), alleging unlawful discrimination (“Application”). Curry Palace has brought the Dismissal Application on the basis that Ms Gill has not alleged any act or omission which it is necessary to plead in a pleading where a cause of action based on alleged discrimination is sought to be made out, and therefore Ms Gill has no reasonable prospect of successfully prosecuting her claim.
Factual and procedural background
AHRC Notice of Termination
A Notice of Termination issued by the Australian Human Rights Commission (“AHRC”) under s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) indicates that a complaint by Ms Gill alleging unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (“SD Act”) and the Disability Discrimination Act 1992 (Cth) (“DD Act”) (“Ms Gill’s Complaint”) was terminated under the then s.46PH(1)(i) of the AHRC Act on the basis that a delegate of the President of the AHRC was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
AHRC Decision
The AHRC reasons for decision (“AHRC Decision”) are attached to the AHRC Notice of Termination and confirm that Ms Gill’s Complaint was terminated for the reasons set out in the AHRC Notice of Termination.
The AHRC Decision sets out the nature of Ms Gill’s Complaint as the AHRC appeared to perceive it at the time Ms Gill’s Complaint was terminated, and does so in the following terms:
I am writing to advise you of my decision regarding your complaint against Karan Grewal Pty Ltd trading as Curry Palace Indian Restaurant, alleging pregnancy and disability discrimination under the Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA).
Sections 5, 7, 7B, 8, 14 and 106 of the SDA and sections 5, 6, 10, 11, 15, 21A, 21B and 123 of the DDA appear relevant to the complaint.
A copy of the complaint was provided to the respondent on 23 November 2016. On being advised of the complaint, the respondent indicated a willingness to participate in a conciliation process to try to resolve the complaint.
The AHRC Decision then goes on to deal with the termination of Ms Gill’s Complaint on the basis that there was no reasonable prospect of the matter being settled by conciliation.
Ms Gill’s Complaint
Ms Gill’s Complaint was made on 14 October 2016 and was relevantly in the following terms:
1. I want to raise concerns about Karan Grewal Pty Ltd trading as Curry Palace Indian Restaurant (Curry palace) of pregnancy and disability discrimination in employment. Mr Harpreet Singh is the business owner and my manager.
2. On 13 July 2015, I was employed as a permanent ful-time Tandoor cook. Mr Singh sponsored me for my working visa.
3. As of October 2016, I am 26 weeks pregnant.
4. On 29 August 2016, I gave Mr Singh a medical certificate stating that I needed to do light duties due to my pregnancy. I told him that making naan bread was causing me a lot of pain and fatigue due to my pregnancy and the repeated bending involved. Mr Singh said that the light duties could still include making naan bread.
5. On 7 October 2016, I burnt my hand whilst frying the pappadum. I had to go to the Emergency Department (ED) at hospital and limited first aid provided at the time of burn. The ED doctor gave me a worker’s compensation claim form and told me to give it to my employer. The form said that I should do alternative duties as I had limited capacity due to my injured left hand. I currently can’t use my left hand to work in any capacity.
6. On 8 October 2016, I gave the form to Mr Singh. I reiterated my concerns making naan bread due to my pregnancy and injury. He said I should not have filled this form in emergency. He said that I was planning to get pregnant before I fell pregnant and that was part of my contract with him. I felt that he was saying that if he’s known that I was planning to become pregnant he would have not employed me.
7. Mr Singh then said if I cannot work on tandoor I should resign and that he would cancel my nomination for a visa. I believe this was said because of my pregnancy, injury and request for adjustments. Mr Singh said that I must continue to make naan bread with one hand. I believe this is hazardous for me to do as the Tandoor oven is very hot. He said that I must get a medical certificate explicitly stating I could not make naan bread otherwise I must continue making naan bread.
8. On 13 October 2016, I emailed Mr Singh a detailed medical certificate which stated that I cannot make naan bread.
9. I'm worried that I will lose my job.
Chronology of events
Bearing in mind no relevant affidavit material has yet been filed the chronology of relevant events as it appears from the filed documents appears to be as follows:
a)Ms Gill was employed on 13 July 2015 on a full time basis by Curry Palace, which also sponsored her for her working visa;
b)in about April 2016 Ms Gill fell pregnant;
c)Ms Gill claims during her employment that she was discriminated against by Curry Palace on the grounds of disability and sex;
d)Ms Gill’s Complaint was made to the AHRC on 14 October 2016, and is set out at [6] above;
e)between 24 November 2016 and 13 March 2017 the AHRC facilitated conciliation between Ms Gill and Curry Palace in an attempt to resolve Ms Gill’s Complaint made to it by Ms Gill;
f)on 15 March 2017 the AHRC issued the Notice of Termination, being satisfied there was no reasonable prospect of the matter being settled by conciliation;
g)on 10 April 2017 Curry Palace sent Ms Gill a letter terminating her employment with Curry Palace (“Termination Letter”), which gave the reasons for termination of Ms Gill’s employment as being as follows (transcribed verbatim):
We note that you applied for maternity leave from 21st November 2016 but you not give any end date of your leave. Under the Fair Work ACT 2009. You should give start date and end date of your leave 10 weeks before starting the leave. We asked you twice in written but you don’t give any end date of your leave. The company realised that you will not coming back to work that was peak time of business. Then I advertise online and try with local recruitment but didn’t find any employee for this position. I can’t provide tandoori food to my customers. My restaurant was close for tandoori food one and half month. Then I was start work on tandoor.
Second, you used us only for your Permanent Residency motive. You are not serious for your work. The company don’t want continue with this type of employee. Given this you will not be required to return to work. Your accrued annual leave and your one week pending pay and your sick leave pay from 16/11/16 to 20/11/16 and your advanced two weeks pay of termination will be paid to you within two week of termination.
The notice requirements for taking parental leave under s.74 of the Fair Work Act 2009 (Cth) (“FW Act”) also appear within the Termination Letter;
h)on 12 May 2017 Ms Gill lodged the Application in the Federal Court of Australia alleging unlawful discrimination in employment under the SD Act and the DD Act by Curry Palace;
i)on 31 May 2017 the Federal Court transferred the matter to this Court;
j)on 30 June 2017 the Court made orders (“30 June 2017 Orders”), including an order that the applicant file and serve a Statement of Claim by 14 July 2017;
k)on 14 July 2017 Ms Gill filed not a Statement of Claim, but an amended Application (“Amended Application”), the grounds of which are as follows:
1. The grounds for the application are based on pregnancy and disability discrimination during the Applicants full time employment with Mr Harpreet Singh, business owner and manager of Karen Grewal Pty Ltd T/A the Curry Palace.
2. Mr Singh had sponsored the applicant for her working visa.
3. On 29th August 2016, the Applicant was 20 weeks pregnant. The Applicant provided Mr Singh with a medical certificate pertaining to the need to perform light duties as her usual duty of making naan bread was resulting in pain and fatigue.
4. On 7th October 2016, when the Applicant was 26 weeks pregnant, she burnt her hand while frying which resulted in a trip to the Emergency Department and loss of functionality in the left hand. Upon providing Mr Singh with the workers compensation form which stated the need to perform alternate duties. Mr Singh told the Applicant that she the (sic) should not have filled the form.
5. Mr Singh further stated that the Applicant's pregnancy was pre-planned, and therefore when she signed the contract she agreed to all the terms keeping in mind the pregnancy. This led the Applicant to believe that had Mr Singh known she would not be able to perform her duties due to the pregnancy, he would not have hired her.
6. Mr Singh then told the Applicant to resign if she could not perform her duties of making naan bread. He also threatened to cancel her visa nomination. He further asked the Applicant to continue making naan bread with one hand unless she got a medical certificate explicitly stating that she could not make the naan bread.
7. The Applicant provided Mr Singh with the above mentioned medical certificate.
8. Mr Singh continued to use the Applicant's pregnancy as grounds for discriminating against her and threatening to terminate her employment and cancel her visa.
9. Mr Singh eventually terminated the Applicant's employment on 10 April 2017.
l)the Amended Application seeks orders for unspecified damages, unspecified costs, and any other relief that the Court deems fit;
m)on 28 July 2017 the Court made orders that Curry Palace file and serve a Response by 28 August 2017, and that the matter be referred to a mediation before a Registrar of this Court;
n)on 22 August 2017 Curry Palace filed a Response to the Amended Application opposing the orders sought on the following grounds:
1. The respondent denies committing any discrimination against the applicant as alleged or at all;
2. The respondent says that the applicant abandoned her employment as from 21 November 2016;
3. Further and/or in the alternative, the respondent says that the applicant was in serious breach of her contract of employment as from 21 November 2016 and that such breach of contract justified her summary dismissal from her employment;
4. Further and/or in the alternative, the respondent says that it was justified in acting towards the applicant in the way it did as she was not capable of performing the inherent requirements of her job as a Tandoori Cook.
5. Further and/or in the alternative, the respondent says that it was justified in acting towards the applicant in the way it did as it would have otherwise placed unjustifiable hardship on the respondent.
o)in its Response Curry Palace sought that the Amended Application be dismissed with costs payable by Ms Gill on an indemnity basis;
p)the matter did not resolve at mediation held on 9 October 2017;
q)on 2 March 2018 the matter came on for directions, and the Court ordered that Curry Palace file and serve any Application in a Case for summary dismissal of the Amended Application by 9 March 2018;
r)on 8 March 2018 Curry Palace’s lawyers wrote to lawyers then acting for Ms Gill (“8 March 2018 Letter”), relevantly in the following terms:
1. Your client's application was filed in the Federal Court on 12 May 2017 and states that:
1.1. the Applicant was unlawfully discriminated against by the Respondent "as per Sections 5, 7, 7B, 8, 14 and 106 of the Sex Discrimination Act 1984 (Cth) ". (For convenience we will refer to the act as the SDA in this letter) and;
1.2 the Applicant was unlawfully discriminated against by the Respondent "as per Sections 5, 6, 10, 11, 15, 21A, 21B and 123 of the Disability Discrimination Act 1992 (Cth)". (For convenience we will refer to this act as the DDA in this letter);
2. A number of the sections of the SDA and DDA which you refer to do not actually provide any basis for an "aggrieved person" to make a statutory claim for discrimination pursuant to either of the Acts.
6. The document filed on 14 July 2017 states that it is an application commenced in the Court's jurisdiction under the DDA (Sections 5, 6, 10, 11, 15, 21A, 21B and 123) and the SDA (Sections 5, 7, 7B, 8, 14 and 106);
7. The application which was commenced in the Federal Court on 12 May 2017 was based on a Notice of Termination issued by a delegate of the President of the Australian Human Rights Commission (AHRC) on 15 March 2017;
8. The complaint in relation to which the notice of termination was issued was made by your client on 14 October 2016 and does not allege that your client was dismissed by our client;
9. Your client was dismissed by our client on 10 April 2017;
10. The termination of your client's employment with our client is a matter that falls outside the parameters of your client's complaint to the AHRC;
11. The "Grounds of Application" in your client's purported statement of claim do not allege any act or omission which are necessary to plead in a pleading where a cause of action based on alleged discrimination under the SDA or DDA is sought to be made out;
12. Your client's purported statement of claim makes references to a Mr Harpreet Singh and certain statements he is alleged to have made to the Applicant;
13. There is no claim in the purported statement of claim made against our client, which is a corporation and which is the Respondent in this matter; and
14. The remedies which your client claims in PEG 279/2017 are not related to any allegation of discrimation (sic).
In all of the above circumstances we are of the view that your client has no reasonable prospect of successfully prosecuting her claim.
In the circumstances unless your client files and serves a Notice of Discontinuance by 5pm on 12 March 2018, we have our client's instructions to make an application to Court seeking summary dismissal of your client's claim with costs.
s)on 14 March 2018 Curry Palace filed the Dismissal Application and a supporting affidavit, the effect of which is to seek that the Amended Application be summarily dismissed on the basis that it has no reasonable prospect of success, and also referring to the terms of the 8 March 2018 Letter; and
t)on 23 April 2018 the Dismissal Application was heard by the Court.
Curry Palace’s submissions
In support of the Dismissal Application Curry Palace submits that:
a)Ms Gill claims that she was unlawfully discriminated against by Curry Palace under:
i)sections 5, 7, 7B, 8, 14 and 106 of the SD Act; and
ii)sections 5, 6, 10, 11, 21A, 21B, and 123 of the DD Act;
b)pursuant to s.46PO(3) of the AHRC Act the unlawful discrimination alleged in an application to the Court must be substantively similar to the alleged unlawful discrimination that was the subject of the terminated complaint or it must arise out of substantially the same acts, omissions or practices that were subject of the terminated complaint to the AHRC;
c)Ms Gill’s Complaint to the AHRC did not state how any of the allegations made against Mr Harpreet Singh (“Mr Singh”) amounted to any pregnancy or disability discrimination to which Ms Gill was purportedly subjected to by Mr Singh;
d)the Amended Application, which stands as Ms Gill’s statement of claim in this matter, states that the grounds of her application are “based on pregnancy and disability discrimination during the applicants (sic) full time employment with Mr Harpreet Singh…” ;
e)Ms Gill’s claims (if any) ought to be:
i)directed against Mr Harpreet Singh as her employer; and
ii)be limited to acts and omissions which occurred during the period of her alleged employment with Mr Singh;
f)as the claim is against Karan Grewal Pty Ltd, a legal entity distinct from Mr Singh, Ms Gill’s claim has no reasonable prospect of success as it is directed at the wrong respondent;
g)in the Application (that is as filed with the Federal Court) Ms Gill seeks “compensation” and defines the compensation she seeks as being:
1.Compensation for time off work since dismissal on 10 April 2017 and continuing.
2. Unpaid superannuation payments.
3. 4 weeks pay in lieu of notice. Applicant received only 2 weeks.
4. Shortfall in accrued entitlements and/or payments during applicant’s period of employment, in particular between the period 24 November 2016 to 10 April 2017.
h)by application of s.46PO(3) of the AHRC Act, Ms Gill’s claims ought to be based on acts or omissions which occurred during the period of her alleged employment with Mr Singh prior to Ms Gill’s Complaint, which was made on 14 October 2016, thus the alleged termination of her employment by Mr Singh on 10 April 2017 is a matter that falls outside of the parameters of Ms Gill’s Complaint and cannot be an act of discrimination on which the Amended Application can be grounded;
i)analysis of Ms Gill’s claims for compensation shows the claim for compensation for time off work and the claim for pay in lieu of notice must necessarily arise from her alleged termination of employment and are therefore not maintainable and have no reasonable prospect of success, while the claims for unpaid superannuation and shortfalls in entitlements and payments are not in any way sought to be linked to any alleged act of discrimination and also have no reasonable prospect of success; and
j)a further reason Ms Gill’s claim has no reasonable prospect of success is that the Amended Application does not contain any details or particularisation of the alleged pregnancy or disability discrimination she was allegedly subjected to.
Ms Gill’s submissions
Ms Gill made the following submissions:
a)as per the 30 June 2017 Orders Ms Gill filed and served Curry Palace with a Statement of Claim together with a copy of those orders;
b)the basis of Ms Gill’s claims are those provisions of the SD Act and DD Act referred to by Curry Palace;
c)Curry Palace’s Response does not raise any allegation that the wrong entity has been proceeded against. As Ms Gill’s contract of employment was with Curry Palace, and that employment was terminated on 10 April 2017 in a letter signed by Mr Singh Grewal in his capacity as “Director” of Curry Palace, therefore, Ms Singh’s cause of action falls clearly against Curry Palace and not Mr Singh personally;
d)because Curry Palace’s termination of Ms Gill was a result of its discrimination on the grounds of pregnancy (sex), the termination of employment by Curry Palace goes to the issue of damages to be awarded to Ms Gill if she is successful in these proceedings, and the period of the discrimination by Curry Palace includes the period up to and including 10 April 2017, which falls inside the parameters of her claim for discrimination as it was as a result of her pregnancy; and
e)various evidence will be presented by Ms Gill at hearing to prove the alleged discrimination.
Consideration
Summary dismissal – principles
The power to summarily dismiss a claim in this Court is found in the Federal Circuit Court of Australia Act 1999 (Cth), s.17A (“FCCA Act”) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). Section 17A of the FCCA Act states:
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Rule 13.10 of the FCC Rules states:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
Rule 13.10 of the FCC Rules replicates part of s.17A of the FCCA Act and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ, can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
The phrase “no reasonable prospect of success” was considered by the High Court in Spencer at [58]-[60] per Hayne, Heydon, Crennan, Kiefel and Bell JJ, where it was observed that: unedifying
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression “no reasonable prospect” cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase “no reasonable prospect” is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court in relation to the phrase “no reasonable prospect of success” has observed that:
a)a court must be satisfied that there is no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J (“Dandaven”).
The power to dismiss an application summarily is discretionary. The party making the application for summary relief bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J.
Whether the same as AHRC Complaint
Legislative provision
Section 46PO(3) of the AHRC Act provides as follows:
(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.
Case law
In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 (“Fuji Xerox”) the Federal Court dealt with the provisions of s.46PO(3) of the AHRC Act (then the Human Rights and Equal Opportunity Commission Act 1986 (Cth), but which the Court will refer to as the AHRC Act) and in particular the legal characterisation of the allegations of fact made or sought to be made. The Federal Court observed in Fuji Xerox at [37] per Katz J that:
In the two situations with which … [s.46PO(3) of the AHRC Act] deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.
Of s.46PO(3)(a) of the AHRC Act the Federal Court in Fuji Xerox having said that the relevant terminated complaint proceeded on the basis that the allegations of fact being made before the Court were the same as those made in the complaint terminated by the AHRC, it then went on to observe, Fuji Xerox at [38]-[41] per Katz J, that:
However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from what they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
… on the other hand, [it] permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.
It appears to me that …. [s.46PO(3)(a)] was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work …
… it is apparent that … [s.46PO(3)(a)] … provides no warrant for an applicant in the proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. … [s.46PO(3)(b)] … does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission.
In Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 (“Dye (No 2)”) the Full Court of the Federal Court made the following general observations with respect to s.46PO(3) of the AHRC Act at [46]-[48] per Marshall, Rares and Flick JJ:
46 Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F -G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].
48 The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:
“Court not bound by technicalities
46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.”
The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.
In Dye (No 2) at [50] per Marshall, Rares and Flick JJ the Full Court of the Federal Court held that an additional allegation of sexual assault, not previously made in respect of the complaint terminated by the AHRC, was an act that arose out of the same unlawful discrimination about which complaint had been made, or was of the same substance, in circumstances where the complaint to the AHRC had complained of the applicant being subject to a course of sexual harassment in a variety of forms over a period of months, and the new incident fell, in time, between two other alleged incidents of sexual harassment which were 13 days apart. The Full Court of the Federal Court held that the scope of the complaint to the AHRC was sufficiently wide to prevent summary exclusion of the additional factual allegation at an interlocutory stage, but observed at [50] per Marshall, Rares and Flick JJ that:
There may well be cases where at an interlocutory stage it is clear that an allegation could not be made in an application under s 46PO(3) because it fell outside any issue reasonably justiciable in respect of a complaint terminated by the Commission.
It is generally accepted that acts of discrimination which occur after the termination of a complaint to the AHRC are not permitted to be raised in the application before the Court, because the policy of the AHRC Act is to ensure an opportunity for conciliation of the issues in dispute to take place before a matter is litigated: Fuji Xerox at [43] per Katz J; Crvenkovic v La Trobe University [2009] FCA 347 (“Crvenkovic”); Haraksin v Murrays Australia Ltd (No 2) [2013] FCA 217; (2013) 211 FCR 1.
In Kujundzic v MAS National [2013] FMCA 8; (2013) 274 FLR 125 at [38] per Cameron FM the Court observed that:
38 As s 46PO sets out the elements of a cause of action based on unlawful discrimination there is no cause of action for unlawful discrimination except in accordance with its terms. Relevantly that means that if the present applicant has a cause of action based on alleged unlawful discrimination, it accrued when, according to s 46PO, the last fact necessary to make it out came into existence. That fact was the issuing by the Commission of the notice of termination on 12 April 2012.
In Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277; (2003) 175 FLR 446 at [23]-[24] per McInnis FM the Court observed that:
23 … I further adopt the reasoning of the court in the Fuji Xerox case and in particular note the reference in that case to the fundamental principles which apply to prevent a party from relying upon a cause of action which accrued after the commencement of a proceeding and which in the circumstance of human rights claims include preventing a party from relying on material which was not properly the subject of the complaint before Human Rights and Equal Opportunity Commission and would not otherwise be accommodated under s 46PO(3)(b) of the Human Rights and Equal Opportunity Commission Act. To do so would be to extend the legislation by permitting a party to add further allegations of discrimination after the matter had been determined by the Human Rights and Equal Opportunity Commission and prior to applying to the Court and that would not be consistent with the legislative intent in my view.
24 I should add that in general terms the matter of principle is similar to fundamental principles identified by Mason J in Wiggin v Edwards (1973) 47 ALJR 586, cited by Katz J in the Fuji Xerox case, when referring to the District Court not being a strict court of pleading Mason J stated (at 596):
“… There is no good reason for concluding that in the absence of appropriate statutory provision, or the consent of the defendant [the plaintiffs] could succeed in obtaining a judgment on a cause of action which had not accrued at the date of the plaint … ”
In King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; (2012) 286 ALR 149 (“King”) the terminated complaint of the applicant arose from the respondent’s refusal to carry the applicant, who required wheelchair assistance, on a particular flight because the respondent’s limit for passengers requiring such assistance had already been reached for that flight. The applicant made claims under ss.6 and 24 of the DD Act for the first time in the application to the Court, the complaint to the AHRC was bought only pursuant to s.5 of the DD Act. In King at [25]-[26] and [28] per Robertson J the Federal Court observed that:
25. The point of reference in s 46PO(3) is the unlawful discrimination alleged in the application to the Court: it is that which must either be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint or which must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. I emphasise the alternative. It is sufficient if the unlawful discrimination alleged in the application to the Court arises out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.
26. I therefore reject Jetstar's submission that if the unlawful discrimination the subject of the terminated complaint was only within s 5 and not s 6 the applicant could not rely on indirect discrimination in this Court. This is because in this case the unlawful discrimination alleged in the application to the Court arose out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint…
28. In my view, s 46PO(3) does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices. In the present case, so far as concerns the amendment, because no different acts, omissions or practices were pleaded, s 46PO(3)(b), at least, was satisfied.
In Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562; (2006) 235 ALR 53 the Full Court of the Federal Court did not appear to cavil with the finding below in Hurst v Queensland [2005] FCA 405 (“Hurst (No 1)”) that s.46PO(3) of the then Australian Human Rights and Equal Opportunity Commission Act 1985 (Cth) confined the complaint to actions occurring to the time period of the complaint, though noted that events occurring after the complaint being terminated were still relevant. It was stated at in Hurst (No 1) at [109]-[111] per Lander J:
109 Whilst I have rejected the respondent’s first contention that Ben’s inquiry should be limited to a commencement date in the 2001 school year, I do accept the respondent’s contention that the inquiry should be limited to the period ended 30 May 2002.
110 That, however, does not necessarily make any evidence subsequent to 30 May 2002 irrelevant. That evidence may be relevant to show whether Ben’s direct discrimination claim, whether his teachers prior to 30 May 2002 were fluent in Signed English and, in both applicants’ indirect discrimination claims, whether they were able to comply with the requirement or condition or, alternatively, whether to that point of time, namely 30 May 2002, the requirement or condition was reasonable, have been made out.
111 However, in the end result, the inquiry must be whether the acts of discrimination, in whatever form, occurred prior to 30 May 2002.
The same approach was adopted in Sievwright v Victoria [2012] FCA 118 at [3] per Marshall J.
In Crvenkovic at [8]-[11] per Tracey J the Federal Court stated (referring to Fuji Xerox as “Charles”):
8 Charles has since been applied by other single judges: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); and Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 at [4] (per Tracey J). More recently a Full Court, in Hurst v State of Queensland (2006) 151 FCR 562, accepted that s 46PO(3) imposed “temporal limits” on any claim brought under s 46PO(1). The Court was referred to Charles and its reasoning proceeded on the basis that Charles was correctly decided.
9 Ms Crvenkovic contended that s 46PO(3) should be read as if the words “the subject of” in its two paragraphs did not appear and that the reference to “practices” in para (b) comprehended “conduct following the termination of the complaint [which could] be said to arise out [of] identical practices that formed the subject matter of the terminated complaint.” It was also contended that the terms in which the Court's powers to grant relief to a complainant under s 46PO(4), (6) and (7) were not consistent with there being a temporal limit of the kind which Charles had found to be imposed by s 46PO(3).
10 I found these arguments to be unconvincing. Both paragraphs of s 46PO(3) would be rendered meaningless by the notional omission of the words “the subject of”. The use of the word “practices” in s 46PO(3)(b) is apt to refer to practices which occurred prior to the lodging of a complaint. The fact that they continued to be implemented thereafter may support the making of a further complaint but this possibility does not compel the conclusion that s 46PO(3) should be construed in a manner contended for by the applicant. If the Court finds that unlawful discrimination has occurred it may grant one or more of the orders provided for in s 46PO(4). These orders may readily be applied to unlawful discriminatory acts, omissions or practices which have been the subject of complaint to the Commission. Section 46PO(6) provides for the granting of interim injunctions. Whilst the granting of such injunctions might be appropriate where conduct, which has been the subject of complaint to the Commission, has continued or been resumed, it does not necessarily follow that s 46PO(3) does not impose the temporal limit which was recognised in Charles. Section 46PO(7) merely provides the Court with power to discharge or vary earlier remedial orders made under the section.
11 As a single judge of the Court I should follow Katz J unless I thought that he was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J) and the authorities there cited. I am not persuaded that his Honour was clearly wrong for the reasons advanced by Ms Crvenkovic or for any other reason. On the contrary, I respectfully agree with His Honour's reasoning. I am fortified in this view by the fact that, although the Full Court in Hurst did not expressly approve Charles, its reasoning assumed that Katz J was correct in his construction of s 46PO(3).
In Arnold v Compass Group (Australia) Pty Ltd & Anor [2014] FCCA 1999 (“Arnold”) it was found that allegations of conduct including sexual harassment which were not complained of as constituting sex discrimination before the AHRC nevertheless fell within s.46PO(3)(b) of the AHRC Act. The Court noted that the same facts can give rise to another action of different legal character, in that case both sex discrimination and sexual harassment under the SD Act arising on the same facts, and the Court held it had jurisdiction to hear the sex discrimination claims not previously made: Arnold at [59] and [68] per Judge Lucev.
Consideration
Whether the Amended Application is the same or substantially the same as the AHRC Complaint
In order to determine whether or not the unlawful discrimination alleged in the Amended Application is the same as, or the same in substance as, the unlawful discrimination the subject of Ms Gill’s Complaint, or arises out of the same or substantially the same acts, omissions or practices the subject of Ms Gill’s complaint, it is necessary to compare Ms Gill’s complaint to the Amended Application. In that regard it can be seen that it is alleged that:
a)there was pregnancy and disability discrimination in employment: Ms Gill’s Complaint at [1] and the Amended Application at [1];
b)the employment was with Curry Palace (or Mr Singh, as now asserted by Curry Palace), with Mr Singh said to be Ms Gill’s sponsor for her working visa, and with the employment being said to be full-time: Ms Gill’s Complaint at [1] and [2] and the Amended Application at [1] and [2];
c)on 29 August 2016 Ms Gill gave Mr Singh a medical certificate in relation to her pregnancy and the necessity to perform light duties because her duties making naan bread were causing her pain and fatigue: Ms Gill’s Complaint at [4] and the Amended Application at [3];
d)on 7 October 2016 Ms Gill burnt her left hand while frying, and had to attend an emergency department, and had limited functionality or limited capacity due to the injury to her left hand and therefore had to perform alternative duties: Ms Gill’s Complaint at [5] and the Amended Application at [4], and that at the time of this injury Ms Gill was 26 weeks pregnant: Ms Gill’s Complaint at [3] and the Amended Application at [4];
e)when Ms Gill gave the workers’ compensation claim form arising from the injury to her left hand to Mr Singh he told her that she should not have filled the form in, and that she had been planning to get pregnant before she signed her contract of employment, which led Ms Gill to believe that she would not have been employed if Mr Singh knew that she was planning to become pregnant: Ms Gill’s Complaint at [6] and the Amended Application at [4] and [5];
f)Mr Singh told Ms Gill that if she was unable to perform her duties making naan bread in the tandoor that she should resign, and that he would cancel her nomination for her work visa: Ms Gill’s Complaint at [7] and the Amended Application at [6];
g)Mr Singh told Ms Gill that until Ms Gill obtained a medical certificate explicitly stating that she could not make naan bread she was to continue to do so with one hand: Ms Gill’s Complaint at [7] and the Amended Application at [6];
h)Ms Gill provided Mr Singh with a medical certificate: Ms Gill’s Complaint at [8] and the Amended Application at [7]; and
i)Ms Gill’s Complaint asserted at [9] that she was worried that she would lose her job, whilst the Amended Application at [8] said that Mr Singh continued to use Ms Gill’s pregnancy as grounds for discriminating against her and threatening to terminate her employment and cancel her visa, and for present purposes, the Court is prepared to infer, in favour of Ms Gill, that the worry expressed in Ms Gill’s Complaint was a manifestation of the threats referred to in the Amended Application: Dandaven at [6(i)] per Gilmour J.
The only different, or substantially different, allegation of fact as between Ms Gill’s Complaint and the Amended Application is the assertion in the Amended Application at [9] that Mr Singh eventually terminated Ms Gill’s employment on 10 April 2017.
It is plain from the AHRC Decision that the AHRC perceived, at the time of the termination of Ms Gill’s Complaint, that Ms Gill’s Complaint was one of alleged unlawful discrimination in employment on the basis of sex and disability: see [4] above.
The only matter in respect of which the Amended Application appears to go further than might be prescribed by s.46PO(3) of the AHRC Act is in relation to the allegation in the Amended Application at [9] that Curry Palace terminated Ms Gill’s employment. That termination is alleged to have occurred in April 2017, after the issuance by the AHRC of the Notice of Termination on 15 March 2017.
It is plain that this Court is bound by judgments of the Federal Court: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; and see also CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 (“Fortescue Metals Group”) at [51]-[55] per Judge Lucev, where the Court observed that “Judgments of the Federal Court which are on point, not distinguishable and “not plainly wrong are binding on this Court”: Fortescue Metals Group at [51] per Judge Lucev. Similarly, comity between the Federal Court and this Court, and between judges of this Court, necessitate that previous judgments which are not distinguishable and not plainly wrong are followed by his Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; see also See v Granich & Associates [2008] FMCA 27 at [17] per Lucev FM.
It is apparent from the consideration of Ms Gill’s Complaint and the Amended Application set out above that the plea in the Amended Application with respect to the termination of Ms Gill’s employment on 10 April 2017 falls outside the parameters of Ms Gill’s Complaint, and is therefore, by reason of s.46PO(3) of the AHRC Act, not a matter within the jurisdiction of this Court to consider in relation to Ms Gill’s Complaint: see the authorities in the Federal Court and this Court as set out at [17]-[27] above. If Ms Gill had a complaint concerning the actual termination of her employment in April 2017 that could have been the subject of a further complaint: Crvenkovic at [10] per Tracey J, but it was not.
It follows, subject to what is said with respect to the Amended Application generally: see [46]-[47] below that, in any event, the claim with respect to the termination of Ms Gill’s employment on 10 April 2017 at [9] of the Amended Application ought to be struck out of the Amended Application, applying, pursuant to r.1.05(3) of the FCC Rules, r.16.21(1)(e) of the FC Rules.
With respect to the remainder of the Amended Application, Ms Gill’s Complaint and the Amended Application are in relation to the same matters, or arise out of the same acts, omissions or practices, for the purposes of s.46PO(3) of the AHRC Act, and the allegations made therein are therefore within the jurisdiction of this Court, and cannot be struck out or summarily dismissed for want of jurisdiction as falling outside of the parameters of s.46PO(3) of the AHRC Act.
The employment issue
Curry Palace asserts that the allegations in Ms Gill’s Complaint are directed to and against Mr Singh, and that Curry Palace (in its corporate manifestation as Karan Grewal Pty Ltd) is a legal entity distinct from Mr Singh, and that Ms Gill’s claim has no reasonable prospect of success as it is directed at the wrong respondent.
The Court notes that this is not a matter which was raised by Curry Palace prior to its 8 March 2018 Letter to the lawyers then acting for Ms Gill: see [7(r)] above, but even in that letter Curry Palace admits to having “dismissed” Ms Gill and terminated her employment: see 7(n) above at [9] and [10] of the 8 March 2018 Letter. The Dismissal Application was filed six days later. The Response, filed by Curry Palace on 22 August 2017, just over four months after Ms Gill alleges that her employment was terminated by Curry Palace makes no claim that the Amended Application named the wrong employing entity, or that the claims made therein are directed to the wrong entity, but rather asserts that Ms Gill “abandoned her employment”, or further and in the alternative, that Ms Gill “was in serious breach of her contract of employment”, so serious that it “justified her summary dismissal from her employment” by Curry Palace. In the absence of an amended Response, or any application to amend the Response, the Response stands, and contains admissions that Ms Gill was employed by Curry Palace. As to the withdrawal of an admission see r.26.11 of the FC Rules, applicable by reason of r.1.05(2) of the FCC Rules, and see Fair Work Ombudsman v D’Adamo Nominees Pty Ltd (No 4) [2015] FCCA 1178; (2015) 301 FLR 1 at [73]-[76] per Judge Lucev.
Even if Curry Palace had not made the admissions contained in the Response the assertions that the wrong respondent has been named cannot be sustained. Both the Application and Amended Application named the respondent as Karan Grewal Pty Ltd T/A Curry Palace Indian Restaurant. That accords with Ms Gill’s Complaint at [1] which refers to concerns about pregnancy and disability discrimination in employment at Karan Grewal Pty Ltd T/A Curry Palace Indian Restaurant, of which it is said that Mr Singh is the business owner and manager. Ms Gill’s Complaint and the Amended Application are at one (both generally and for the purposes to the extent necessary of s.46PO(3) of the AHRC Act) in naming Curry Palace in its corporate manifestation as Karan Grewal Pty Ltd as the employer and respondent to the various proceedings. Ground 1 of the Amended Application refers to the grounds of pregnancy and disability discrimination “during the Applicant’s full time employment with Mr Harpreet Singh, business owner and manager of Karen (sic) Grewal Pty Ltd T/A the Curry Palace”. Although it is not well pleaded, and it might be said to give rise to ambiguity, read fairly, it is either intended to be, or at the very least arguable that it is, an allegation that Ms Gill was employed by Curry Palace in its corporate manifestation as Karan Grewal Pty Ltd. Given that the Court must take the Amended Application at its highest and most favourable to the applicant: Dandaven at [6(i)] per Gilmour J, it follows that an application for summary dismissal on the basis that the wrong employer or wrong respondent has been named in the Amended Application cannot succeed. Even if the true identity of Ms Gill’s employer at the relevant times is in dispute (which the Court suspects it is not) it is a matter which would be provable, one way or the other, by evidence in relation to what person, corporate or natural, was the employer of Ms Gill at the relevant time: Dandaven at [6(e)] per Gilmour J.
It follows that the Amended Application cannot be summarily dismissed or struck out on this basis, but it may be that re-pleading is capable of removing any ambiguity as to Ms Gill’s actual employer, as alleged by her.
Relief
Curry Palace’s submissions deal with the orders for relief sought in the Application (that is as filed with the Federal Court). The relief there sought would appear to be by way of alleged unpaid or underpaid entitlements under the FW Act or a Modern Award, or in contract. Such claims, whether within the original, associated or accrued jurisdiction of this Court: FCCA Act, s.18; Rana v Google Inc [2017] FCAFC 156; (2017) 254 FLR 1; (2017) 350 ALR 280 (“Rana”) at [15]-[21] per Allsop CJ, Besanko and White JJ, might be arguable if properly pleaded in an originating application before this Court. Whether or not the Amended Application could now be further amended to include such claims might depend upon the precise processes necessary for the invocation of this Court’s jurisdiction in relation to some of those matters. At this stage, however, there is no such originating application or application to amend the Amended Application to include such claims. It is therefore unnecessary to address that matter further.
The final orders presently sought in the Amended Application are non-specific, broad and generic in nature. These are, however, matters which could be re-pleaded without any great difficulty to seek any appropriate form of relief pursuant to the AHRC Act: AHRC Act, s.46PO(4).
It follows that there is nothing in the form of relief presently sought in the Amended Application sufficient to warrant summary dismissal or strike out of the Amended Application, but re-pleading of the relief sought to accord with some form of relief which this Court can order pursuant to s.46PO(4) of the AHRC Act would be appropriate.
The pleading generally
Section 46PR of the AHRC Act provides as follows:
In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 at [7] per Lucev FM, nor to disregard the usual principles with respect to proper pleading: Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [7]-[8] per Robertson J. In Shurat Hadin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [35]-[36] per Robertson J the Federal Court said that:
35 I do not regard the conclusions in the cases relied on by the applicants as having the consequence that this Court should not require pleadings that adequately state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial. After all, the point of Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245 is that the Commission is not a court, let alone a court with adversarial proceedings, so one would not expect the need for precision to be as great in that forum as it is in the Court. I would also note, as a general observation, that some of the prolongation and complexity of some human rights litigation may be seen to stem from an inadequate identification of the primary facts in the first place.
36 I reject the submission on behalf of the applicants that it is sufficient to establish: a terminated complaint; an affected person; and an allegation of unlawful discrimination, being the matters referred to in s 46PO of the Australian Human Rights Commission Act. I also reject the submission, founded on Hinchliffe v University of Sydney (2004) 186 FLR 376; [2004] FMCA 85 at [94], with reference to the practice in what is now the Federal Circuit Court of Australia, that there is a principle that pleadings in a formal sense should not be required in proceedings under the Australian Human Rights Commission Act.
The Court notes that:
a)in Walker v Victoria [2012] FCAFC 38 (“Walker”) at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
b)in Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
c)in Thorpe v Commonwealth of Australia(No 3) [1997] HCA 21; (1997) 71 ALJR 767; (1997) 144 ALR 677 (“Thorpe (No 3)”) ALJR at 774-775 per Kirby J it was observed that ordinarily a party will be permitted an opportunity to re-plead:
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.
d)in Nulyarimma & Ors v Thompson & Ors (1999) 96 FCR 153; (1999) 165 ALR 621 at [208] per Merkel J (with whom Wilcox and Whitlam JJ relevantly agreed), the Federal Court cited with approval the first sentence of the above observations in Thorpe (No 3) ALJR at 774-775 per Kirby J; and
e)in Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 (“Takemoto”) the Federal Court said that whilst “caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead”: Takemoto at [87] per Flick J, and that a party will normally be permitted to re-plead, particularly where the cause of action concerned is complex and where prior opportunities have not been extended: Takemoto at [89]-[90] per Flick J.
In this case the 30 June 2017 Orders required Ms Gill to file a Statement of Claim. She did not do so, but rather filed the Amended Application. It is apparent that the Amended Application has been drafted by a lawyer unfamiliar with the necessity to properly plead discrimination claims of this type. At present, the matter is really not pleaded in a proper form at all, and the fault for that lies squarely with Ms Gill’s lawyers who filed the Amended Application instead of a Statement of Claim as ordered. If the Amended Application is anything to go by it is evident that Ms Gill’s lawyers may need the assistance of Counsel experienced in the drafting of statements of claim in federal discrimination law.
It will be evident from some of the Court’s comments above: see [38]-[39] and [41]-[42] above, that even if the Amended Application were taken to be a Statement of Claim there are elements of it which must be pleaded or re-pleaded. There are, otherwise, not insignificant deficiencies in relation to the way in which the alleged sex and disability discrimination is “pleaded”, and at present the Amended Application does look like the recitation of a series of sections of the SD Act and DD Act, a claim of alleged unlawful discrimination on the basis of sex and disability, and “a litany of complaints, rather than a series of allegations of unlawful discrimination”: Walker at [26] per Gray J. Furthermore, the nature of some of the broad allegations which are made concerning threats to have Ms Gill’s work visa cancelled are so serious that they must be properly pleaded and particularised. The Court is, however, of the view that looking at the facts as they are presently set out, and ignoring the existing deficiencies in the “pleading”, it does appear that there is likely to be evidence of a nature which can give colour and content to the alleged unlawful discrimination, and which might, in the hands of a competent pleader, give rise to an arguable case of unlawful discrimination by Curry Palace against Ms Gill. It follows that this is not a case in which it can be said that Ms Gill has no reasonable prospect of success. Importantly, the pleading deficiencies set out above are remediable, and Ms Gill ought therefore be given the opportunity of drafting a Statement of Claim (and not a further Amended Application) in proper form.
Conclusion and orders
The Court has concluded that:
a)paragraph 9 of the Amended Application is to be struck out, but otherwise the Dismissal Application is to be dismissed;
b)Ms Gill is to file and serve a Statement of Claim in proper form (and not a further Amended Application) by 18 January 2019; and
c)the matter is to be listed for further directions on a date to be fixed by written application by either party to the docket Judge’s Chambers such application to be made not before 21 January 2019.
The Court will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 December 2018
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