Ilian v Australian Broadcasting Corporation

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

1. The Application for summary dismissal be dismissed.

2. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG198 of 2004

TITA ILIAN

Applicant

And

AUSTRALIAN BROADCASTING COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

1. 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;

   …”

2. 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.”

3. 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…