Ilian v Australian Broadcasting Corporation
[2005] FMCA 1143
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ILIAN v AUSTRALIAN BROADCASTING CORPORATION | [2005] FMCA 1143 |
| HUMAN RIGHTS – Summary dismissal – whether arguable case. |
Federal Magistrates Court Rules 2001, Rules 13.09, 13.10(a)
Sex Discrimination Act 1984, ss.5, 7, 14(2)
Human Rights & Equal Opportunity Act 1986, s.46PO(3)
Thomson & Orica Australia Pty Ltd (2002) FCA 939
Gibbs v Australian Wool Corporation (1990) EOC 92-327
Ebber vHREOC (1995) 129 ALR 455
Rana vUniversity of SA [2003] FMCA 525
Hassan v Hume & Anor [2005] FMCA 476
| Applicant: | TITA ILIAN |
| Respondent: | AUSTRALIAN BROADCASTING CORPORATION |
| File No: | PEG198 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 16 March 2005 |
| Date of Last Submission: | 21 March 2005 |
| Delivered on: | 12 August 2005 |
| Delivered at: | Perth |
REPRESENTATION
| Counsel for the Applicant: | Ms R Consentino |
| Solicitors for the Applicant: | Gibson & Gibson |
| Counsel for the Respondent: | Mr T Caspersz |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application for summary dismissal be dismissed.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG198 of 2004
| TITA ILIAN |
Applicant
And
| AUSTRALIAN BROADCASTING COMMISSION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Respondent by an application filed 18 January 2005 seeks summary dismissal orders of the application filed by the Applicant on 31 December 2004. A further order is sought by the Respondent for costs. The application is made under Rules 13.09 and 13.10(a) of the Federal Magistrates Court Rules 2001 (the Rules) which provide as follows:-
“13.09 Application
An application for judgment for an order that a proceeding be stayed or dismissed must be made by filing an application in accordance with the form of application set out in Part 1 of Schedule 2.
13.10Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief or;
…”
In the application filed on 31 December 2004 Tita Ilian (the Applicant) seeks orders pursuant to the Sex Discrimination Act 1984 (the SDA) against Australian Broadcasting Corporation (the Respondent). The claim in this Court follows a Notice of Termination issued pursuant to s.46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), (the HREOC Act). In the Notice of Termination the delegate of the President of the Human Rights & Equal Opportunity Commission states the following:-
“The complaint alleging discrimination on the basis of sex and pregnancy in employment under the Sex Discrimination Act 1984 has been terminated pursuant to s.46PH(1)(i) of the Act on the ground that I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.”
Attachment A to the Notice of Termination sets out the details of the Applicant’s complaint as follows:-
“The Complaint
Ms Ilian states that she commenced employment with the ABC in September 1980 where she worked in various departments until she became the Production Resources Coordinator in 1991. Ms Illian states that in 1999 her manager began a review of her position level, however he left and her new manager, Mr O’Brien did not pursue this process. She states that she advised Mr O’Brien of her pregnancy in May or April 2001 with her maternity leave due to commence in September 2001. She says that prior to her commencing maternity leave a performance management meeting was arranged with Ms Fiona Herbert where she discussed the regrading of her position. Ms Ilian states that Mr O’Brien did not approve the regrading and she appealed his decision however he refused to change it. Ms Ilian states that she was due to return to work in September 2002 but became pregnant again in June 2002 and suffered from post natal depression and was unfit for work until February 2003. She says that she notified the Company of her intention to take further maternity leave between 29 January 2003 and 22 April 2003. She says that she contacted Mr O’Brien in August 2003 to discuss her return to work in January 2004 but received no response and was eventually told to just show up.
Ms Ilian states that when she arrived at work on 21 January 2004 she was told that her job had gone and she was assigned to various miscellaneous and menial tasks. Ms Ilian states that her job had not gone and that another employee, Ms Preston, had been employed to fill in whilst she was on maternity leave but was still working in it when she returned. Ms Ilian states that she then commenced training for a position within Tech Services but was still required to perform duties for the Production Resources as well. She says that Ms Preston constantly checked on her, required her to do various menial tasks and sent her emails about the status of her tasks.
Ms Ilian states that in March 2004 she was advised that a performance appraisal would be conducted for her against her old job plan which she believed to be unfair. She also says that she was being paid at a lower rate. Ms Ilian says that she continually asked for her position back. She says that she was harassed and pulled up for trivial matters in front of other staff. Ms Ilian states that on 22 April 2004, Pam Oliver made vague allegations about her work performance and receipt of complaints but would not elaborate. Ms Ilian states that on 23 April 2004 she ceased working and lodged a workers compensation claim.”
The Respondent in its Response before the Commission addresses the details of the complaint and denies the allegations made by the Applicant. Detailed reference is made to the management plan of the Respondent and otherwise whilst conceding the Applicant was occasionally sent reminders of tasks, that this was done to assist her training and specifically denies other allegations by the Applicant including suggestions of harassment or any breach of the relevant legislation.
In support of her application before this Court the Applicant has relied upon a detailed affidavit sworn 30 December 2004.
According to the submissions in writing filed on behalf of the Applicant the facts fall into the following broad categories:-
(a)The failure of the Respondent to conduct a performance management process with the with Applicant in a timely manner consistent with the Respondent’s own policy and procedures following the Applicant’s notice to the Respondent of her pregnancy and intention to take maternity leave in April 2001 to September 2001;
(b)The meeting between the Applicant and her manager, John O’Brien of 21 January 2004 upon the Applicant’s return to work from maternity leave. It is alleged that at this meeting the Applicant was advised that she would not be returning to her job as Production Resources Coordinator and that another had replaced the Applicant in that role;
(c)The Respondent’s failure to restore the Applicant to her pre-maternity leave position as Production Resources Coordinator following her return from maternity leave on 21 January 2004, and appointment of a temporary employee, Janet Preston, to fill that role after the Applicant’s return to work;
(d)The decision by the Respondent to allocate alternative, menial tasks with reduced status to the Applicant upon her return to maternity leave including the failure to provide a clear job description or clear reporting lines, and the failure to allocate meaningful duties to occupy the Applicant full time;
(e)The Respondent’s proposal to conduct performance management of the Applicant against job criteria which she was not performing as a result of the changes to her role described above;
(f)Intrusive supervision of the Applicant and bullying of the Applicant by employees of the Respondent following her return from maternity leave and placement in alternative role compounding the demeaning effect of that alternative role.
It is claimed that those facts amount to direct discrimination in contravention of ss.14(2) and 7, and 5 of the SDA on the basis that they constitute discrimination on the grounds of the Applicant’s pregnancy and sex. It is conceded on behalf of the Applicant that in order to succeed in the allegation of direct discrimination the Applicant must prove the following:-
(a)That she suffered a detriment;
(b)That the Respondent treated her less favourably than hypothetical comparator being another person without the attribute of pregnancy; and
(c)That the less favourable treatment was on the ground of the Applicant’s pregnancy.
There is some debate about who might be the applicable hypothetical comparator and it is contended on behalf of the Applicant that that would be a matter for the Court upon hearing the application. In dealing with the issue of less favourable treatment it is argued that whilst there may be a number of reasons for a particular course of action followed by the Respondent that the Applicant need only show that the relevant attribute constitutes one of the reasons and is a substantial reason for the elements of discrimination to be satisfied.
For present purposes I accept as submitted by the Applicant that the taking of maternity leave can properly be regarded as a characteristic of pregnancy (see Dubois-Hammond v Raging Thunder Pty Ltd citing Thomson & Orica Australia Pty Ltd (2002) FCA 939 at [165]). It is argued on behalf of the Applicant that on the basis of her affidavit material had she not taken maternity leave she would have continued in the position of Production Resources Coordinator. It is further argued that it was the Applicant’s pregnancy which led to her absence on leave and if she had not been on leave then another person would not have been appointed to the role of Production Resources Coordinator and the Applicant would not have been allocated what she alleges to be ad hoc and menial work upon her return to work and would otherwise not have been subjected to what she claims was arbitrary intrusive supervision, bullying or a performance management process which was inappropriate to her duties. In the absence of an acceptable explanation for the alleged treatment it is submitted that it is open to the Court to infer that the treatment was discriminatory and in breach of the SDA.
It is claimed that on the material currently before the Court it is open to the Court to make findings as follows:-
(a)That the failure to restore the Applicant to the position of Production Resources Coordinator, the failure to adequately consult with the Applicant regarding her return to work and the allocation of menial ad hoc duties to the Applicant upon her return from maternity leave amounted to a change in the terms and conditions of her employment being a detriment suffered by the Applicant in satisfaction of section 14(2(a) and 14(2)(d) of the SDA. The change in her duties also would have affected detrimentally the Applicant’s prospects of a positive performance management appraisal and increment in pay for section 14(2)(b) to also be satisfied;
(b)That the treatment was less favourable than how the Respondent would treat a relevantly equivalent person who was not pregnant for the purposes of section 7(1) of the SDA. Whilst there is no direct evidence of comparative treatment, the inference is open on the Applicant’s evidence and indeed such inference is likely to be drawn in the absence of evidence adduced by the Respondent to the contrary;
(c)That the relevant comparator is a person who was not pregnant and had not taken maternity leave;
(d)That the reason for the less favourable treatment is the fact that the Applicant had taken maternity leave, and therefore that the reason was the Applicant’s pregnancy.
Further, the Applicant’s case is that the Respondent has treated her unfavourably because she had taken maternity leave and therefore her pregnancy was a significant factor leading to the change in her duties and failure to restore her to her position as Production Resources Coordinator (see Gibbs v Australian Wool Corporation (1990) EOC 92-327).
In the alternative the Applicant claims that the facts amount to indirect discrimination on the grounds of pregnancy. It is argued the performance management process imposed upon the Applicant, a requirement that she perform a job role for a period of 12 months and to meet criteria against that job role in order to be eligible for a pay increment, that requirement it is argued disadvantaged pregnant women taking maternity leave being a requirement which could not be met by the Applicant.
It is argued that the application is not one dependent upon pleadings, that there is no procedural requirement for particulars of the alleged unlawful discrimination to be provided. The affidavit evidence currently before the Court it is submitted provides evidence of primary facts from which a finding of unlawful discrimination may be made and raises issues of fact and questions of law which should be argued at trial and after all the evidence has been led, the facts established and the case fully presented.
Against the backdrop of the claim by the Applicant it is noted that the Respondent has submitted in support of the application for summary dismissal that there is no reasonable cause of action disclosed by the application. The affidavit in support and the application itself do not particularise the alleged less favourable treatment in employment of the Applicant by staff and officers of the Respondent between May 2001 and April 2004 by reason of the Applicant’s sex and pregnancy under the terms of the SDA. It is further argued there is no causal relationship between the events described in the affidavit and the statutory elements of unlawful discrimination.
It is submitted by the Respondent that there are no specific particulars in the application or the Applicant’s affidavit of any of the elements of ss.5(1) or 7(1) of the SDA or any of the areas described in s.14(1) or 14(2). It is argued that the Applicant should state material facts upon which reliance is placed with sufficient particularity (see Ebber vHREOC (1995) 129 ALR 455 at [468]). It is submitted and I accept that a Respondent should not have to guess the case it has to meet and nor should it have to trawl through an application in order to determine what is being alleged against it. Prolixity is not desirable (see Rana vUniversity of SA [2003] FMCA 525 at [11]. In the present case it is argued the Applicant’s affidavit is prolix and does not identify the issues when it should.
Even if the Applicant’s material is accepted at face value it was further submitted it does not form any basis upon which an inference could be drawn of unlawful discrimination as alleged. It is argued there is a causal relationship between the events described in the affidavit and any unlawful discrimination. The Respondent relies upon an analysis of the Applicant’s affidavit set out ‘Attachment A’ to the Respondent’s Submissions.
Summary dismissal principles
I apply the following passage from my decision in Hassan v Hume &Anor [2003] FMCA 476 where I stated at paragraph 24 the following:-
“24.The Court is conscious of the fact that summary dismissal is a matter which should be approached with caution and used sparingly. In particular I note the judgment of Barwick CJ in General Steel Industries at p.129 as follows:-
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
It is noted that that decision in Hassan was upheld on appeal (see Hassan v Hume [2004] FCA 886).
Reasoning
In my view it is not necessary to examine in minute detail the submissions made by either party. It is sufficient on an application of this kind for the Court to determine whether in all the circumstances it could properly conclude that the claim was so obviously untenable that it could not possibly succeed.
Whilst the Respondent is entitled to express concern that the claim currently before the Court does not provide sufficient particulars of unlawful discrimination which would enable the Respondent to properly provide a detailed response, I am not satisfied on the material before me that this Court should dismiss the application as I am otherwise not satisfied that this is a case where it could be argued that the material is so clear to justify summary intervention of the Court to effectively prevent the Applicant submitting her case for determination in the normal manner. Any defect in the particulars provided can be cured to a large extent by the Court making directions that the Applicant should provide points of claim and that those points of claim should include reference to statutory provisions relied upon. The case presented to this Court must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint (see s.46PO(3) of the HREOC Act).
In my view the details of the complaint set out in the Outline of Submissions by the Applicant at least provides a summary of the matters raised in the affidavit material in support of the Application which in turn reflects the matters raised in the complaint terminated by HREOC. It is desirable however that the Applicant be required to set out points of claim referring to relevant statutory provisions and that the Respondent then be required to file and serve points of defence.
I am satisfied that there is currently sufficient material however before the Court which would not justify summary intervention. The summary dismissal of an application must be approached as indicated earlier in this judgment with caution and used sparingly. Whilst the Court has sympathy with the Respondent seeking to meet the case as presently framed and notes what might be described as somewhat vague assertions in the affidavit material, I am satisfied however that there is sufficient to permit the matter to proceed to trial.
At the very least the case currently before the Court provides some basis upon which it may be open to the Court to conclude that the maternity leave taken by the Applicant due to her pregnancy resulted in less favourable treatment and in my view that is sufficient to at least provide a basis upon which this Court should refuse an application for summary dismissal. In reaching that conclusion I have regard to the fact that in claims of this kind there may be a number of factors which may be regarded as contributing to a particular cause of action and the alleged unlawful discrimination may be one of those factors. Ultimately it would be for the Court to consider the application in the light of the points of claim and points of defence and having considered the material provided by both parties.
It is somewhat ironic that the very detailed submissions provided by the Respondent in support of the application for summary dismissal effectively demonstrate in my view that there are issues to be tried and many of the submissions made without reciting them in detail may more properly be relevant upon the conclusion of a trial rather than in support of an application for summary dismissal which, as I have indicated, is a matter which should be approached with caution and used sparingly.
I reject the submission made by the Applicant that there is no requirement in this Court to provide particulars. Although not a Court of pleadings when dealing with a human rights claim this Court is entitled to require any party to provide further particulars which in this case will take the form of points of claim and points of defence with reference to the relevant statutory provisions. Whilst it might be appropriate for the Commission to receive a complaint and then determine the relevant provisions relied upon in the legislation, it is my view that once the matter has been filed in Court then Court procedures make it desirable for parties to identify relevant statutory provisions particularly where those parties are represented.
Accordingly whilst I am satisfied applying the appropriate authorities to which I referred earlier, that the Court should dismiss the application of the Respondent for summary dismissal, it is appropriate that I make orders that the parties respectively file points of claim and points of defence referring in each instance to relevant statutory provisions. The costs shall be reserved as I am satisfied that by bringing these matters to the attention of the Court the Respondent has acted reasonably and it should not be automatically assumed that the costs of the failed application for summary dismissal will be the subject of an adverse order against the Respondent. That matter can be argued at the conclusion of the trial upon hearing submissions from the parties.
It follows for the reasons given that the application for summary dismissal should be dismissed and costs reserved. The Court will make directions as indicated for the filing and serving of points of claim and points of defence referring to relevant statutory provisions together with other directions relating to the trial of the action.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 August 2005
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