Hanson v Burston

Case [2022] FCA 1234

FEDERAL COURT OF AUSTRALIA

Hanson v Burston [2022] FCA 1234  

File number: NSD 1210 of 2020
Judgment of: BROMWICH J
Date of judgment: 19 October 2022 
Catchwords: PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Amended Points of Claim (APOC) – whether the Court had jurisdiction to determine whether the respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the Court has jurisdiction under s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to determine some claims pleaded in the APOC that were not included in the applicant’s complaint to the Australian Human Rights Commission – whether the applicant had reasonable prospects of success in relation to the entire claim in the originating application and APOC – where the Court has jurisdiction to determine a civil case of victimisation under s 94(1) of the SD Act – where some claims pleaded in APOC to be summarily dismissed or struck out, but balance of claims are arguable or struck out but allowed to be re-pleaded.
Legislation:

 Acts Interpretation Act 1901 (Cth) s 15AB

Australian Human Rights Commission Act 1986 (Cth) Pt IIB; ss 3(1), 3(1)(c), 3(1)(f), 46P, 46P(1B), 46PH(1), 46PH(2) 46PH(1B)(b), 46PO(1), 46PO(3), 46PO(4), 49B

Criminal Code (Cth) Chapter 2

Disability Discrimination Act 1992 (Cth) s 42

Federal Court of Australia Act 1976 (Cth) ss 19(1), 31A, 31A(2), 31A(3)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) (repealed)

Human Rights Legislation Amendment Act (No. 1)1999 (Cth)

Judiciary Act 1903 (Cth) Pt X; ss 39B(1A)(c), 68, 79(1)

Members of Parliament (Staff) Act 1984 (Cth) s 20(1)

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth) ss 3f (repealed), 4, 13A, 26, 28A - 28L, 28G(2), 47A (repealed), 80, 81, 82, 94, 94(1), 94(2), 94(2)(g), 105, 115 (repealed),

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth)

Explanatory Memorandum, Human Rights Legislation Amendment Bill (No. 1) 1999 (Cth)

Explanatory Memorandum, Sex Discrimination and Other Legislation Amendment Act 1992 (Cth)  
Cases cited:

Alexander v Cappello [2013] FCCA 860

Amand v Home Secretary [1943] AC 147

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347

Australian Competition and Consumer Competition v Golden West Network Pty Ltd [1997] FCA 792

Brandy v Human Rights and Equal Opportunity [1995] HCA 10; 183 CLR 245

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573

Chen v Monash University [2015] FCA 130

Chen v Monash University [2016] FCAFC 66; 244 FCR 424

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245

Commonwealth of Australia v Lyon [2003] FCAFC 284; 133 FCR 265

Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corp Ltd (No 2) [2014] FCA 593

Coopers Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26

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Details
AGLC
Hanson v Burston [2022] FCA 1234
Case
[2022] FCA 1234
Decision Date

CaseChat Overview and Summary

The case of Hanson v Burston involved an interlocutory application for a strike out and/or summary dismissal of the applicant's Amended Points of Claim (APOC). The applicant, Ms Hanson, alleged that the respondent, Mr Burston, had contravened section 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) and that the Court lacked jurisdiction under section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to determine some claims pleaded in the APOC that were not included in her complaint to the Australian Human Rights Commission. The application also challenged whether Ms Hanson had reasonable prospects of success in relation to the entire claim in the originating application and APOC.

The court had to decide whether it had jurisdiction to determine whether Mr Burston contravened section 94(1) of the SD Act and if it had jurisdiction under section 46PO(3) of the AHRC Act to determine some claims pleaded in the APOC that were not included in Ms Hanson's complaint to the Australian Human Rights Commission. The court also had to consider whether Ms Hanson had reasonable prospects of success in relation to the entire claim in the originating application and APOC. The court concluded that it had jurisdiction to determine a civil case of victimisation under section 94(1) of the SD Act and that some claims pleaded in the APOC could be summarily dismissed or struck out, but the balance of the claims were arguable or could be struck out but allowed to be re-pleaded.

The court found that some claims pleaded in the APOC to be summarily dismissed or struck out, but the balance of claims were arguable or could be struck out but allowed to be re-pleaded. The court also found that Mr Burston had not succeeded in obtaining summary judgment for all of Ms Hanson's case, but he had achieved substantial success in obtaining summary judgment for key aspects and in requiring her to re-plead other substantial parts of her case. However, his argument as to jurisdiction, which always required determination, had failed. The court concluded that Ms Hanson should pay half of Mr Burston's costs of and incidental to the interlocutory application but would instead hear from the parties on costs.

The court ordered that the parties confer and within 14 days or such longer time as may be sought and allowed, submit agreed or competing draft orders to give effect to the reasons for judgment and for the future conduct of the proceeding, including any necessary case management hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties confer and within 14 days or such longer time as may be sought and allowed, submit agreed or competing draft orders to give effect to the reasons for judgment and for the future conduct of the proceeding, including any necessary case management hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

While s 46PR of the AHRC Act provides that in these proceedings, this Court is not bound by technicalities or legal forms, subject to Ch III of the Constitution, given the seriousness of the allegations that Ms Hanson makes against Mr Burston, s 140(2) of the Evidence Act 1995 (Cth), being the statutory manifestation of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362, would apply. The resulting need for such allegations to be proven other than by inexact proofs, indefinite testimony or indirect inferences require pleadings to define the issues in dispute with sufficient clarity to enable Mr Burston to understand the case he has to meet and to provide him with an adequate opportunity to prepare to meet that case, as well as to ensure that Ms Hanson does not depart from that case at trial: see by analogy what was decided on this topic in the civil penalty case of Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [49]-[50]. Conclusion While Mr Burston has not succeeded in obtaining summary judgment for all of Ms Hanson’s case, he has achieved substantial success in obtaining summary judgment for key aspects and in requiring her to re-plead other substantial parts of her case. However, his argument as to jurisdiction, which always required determination, has failed. My preliminary view is that Ms Hanson should pay half of Mr Burston’s costs of and incidental to the interlocutory application. However, I will instead hear from the parties on costs. While these reasons articulate the aspects of the APOC that have been summarily dismissed or struck out, with leave to re-plead, there will be practical considerations as to how that should take place, and other paragraphs than those expressly identified may additionally or collaterally need to be changed as well. In those circumstances it is best that the parties confer and endeavour to reach an agreed position.

Ratio Decidendi

Legal Principle Established

Additionally, s 26, within Div 2 of Pt II of the SD Act, dealing with discrimination in areas other than discrimination in work as addressed by Div 1, provides, in like terms to s 28L, but directed to unlawful discrimination rather than sexual harassment:26 Administration of Commonwealth laws and programs(1)It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.(2)This section binds the Crown in right of a State. Ms Hanson relies upon direct sex discrimination contrary to s 26 upon the basis that sexual harassment can legally constitute direct sex discrimination, citing Elliott v Nanda [2001] FCA 418; 111 FCR 240 per Moore J at [125]-[127]. His Honour cited prior authority for and against the proposition and decided to follow two cases in favour of that conclusion. The argument Ms Hanson advances is that it follows from this reasoning that an allegation of sexual harassment may therefore also amount to an allegation of direct sex discrimination. It is sufficient for present purposes that this is arguable, without deciding the point at this stage. It seems inherently unlikely that a case brought by Ms Hanson by reference to s 28L would fail while a case brought by reference to s 26 would succeed. This is because her case on sexual discrimination under s 26 relies upon sexual harassment, and because each of the allegations that she says she made about Mr Burston referred to sexual harassment or what is said to be an allegation of equivalent conduct. None of the allegations made any express reference to discrimination by him per se. It is therefore convenient for that reason to address this aspect of Ms Hanson’s submissions by reference to s 28L as effectively covering s 26, as well as by reference to s 28G(2). Committing an act of victimisation was during the relevant period, and still is, a criminal offence with a maximum penalty of a fine and/or three months’ imprisonment for a natural person. Section 3(1)(c) and (f) of the AHRC Act, when read with other provisions of that Act considered below, during the relevant period:(a)made engaging in any conduct that is an offence under s 94 able to be the subject of a complaint to the AHRC; and(b)if such a complaint was not resolved and instead terminated, made such conduct the subject of the complaint actionable as a civil cause of action in this Court, without limiting the remedies that may be obtained. The Jurisdictional Issue turns on Mr Burston characterising this proceeding as relying upon an allegation of victimisation based on s 94 of the SD Act and seeking to have this Court exercise criminal jurisdiction which it does not have bestowed upon it.