FEDERAL COURT OF AUSTRALIA
Jones v Westpac Banking Corporation [2020] FCA 238
File number: VID 759 of 2019 Judge: KERR J Date of judgment: 3 March 2020 Catchwords: HUMAN RIGHTS – application for leave to apply to Federal Court of Australia alleging unlawful discrimination pursuant to Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A) – consideration of James v WorkPower Inc [2018] FCA 2083 and Budini v Sunnyfield [2019] FCA 2164 – no reasonably arguable case that alleged poor customer service linked to applicant’s race, sex or disability – complaint plainly unmeritorious – leave refused Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1)(c), 46PO(3A)
Evidence Act 1995 (Cth) s 144(1)
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth) s 9
Sex Discrimination Act 1984 (Cth) s 22
Federal Court Rules 2011 (Cth) r 26.01
Cases cited: Budini v Sunnyfield [2019] FCA 2164
James v WorkPower Inc [2018] FCA 2083
Matthews v Markos [2019] FCA 1827
Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460
Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607
Date of hearing: 19 February 2020 Date of last submissions: 19 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 122 Counsel for the Applicant: Ms Jones appeared in person by telephone Counsel for the Respondent: Ms Davern Solicitor for the Respondent: Ashurst Australia
Table of Corrections 5 March 2020 In paragraph 55 the words “credit cards” have been replaced with the words “debit cards”. 5 March 2020 In paragraph 62 the words “credit card” have been replaced with the words “debit card”. ORDERS
VID 759 of 2019 BETWEEN: COLLEEN SHIRLEY JONES
Applicant
AND: WESTPAC BANKING CORPORATION
Respondent
JUDGE:
KERR J
DATE OF ORDER:
3 MARCH 2020
THE COURT ORDERS THAT:
1.Pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth), leave to make application to this Court be refused to the Applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
BACKGROUND
The Applicant, Ms Jones, is a former customer of the Respondent, Westpac Banking Corporation (Westpac). Ms Jones alleges that Westpac discriminated against her on the basis of her race, sex and/or disability. She submits that Westpac thereby contravened the Racial Discrimination Act 1975 (Cth) (RDA); Sex Discrimination Act 1984 (Cth) (SDA); and the Disability Discrimination Act 1992 (Cth).
In 2018 Ms Jones lodged a complaint regarding the conduct of Westpac with the Financial Ombudsman Service Australia (FOS). That complaint primarily concerned issues distinct from those which she raises for the consideration of this Court. On 9 August 2018, a FOS case manager wrote to Ms Jones providing a preliminary view of the dispute. The case manager found predominately in favour of Westpac, but expressed the view that Westpac:
… did…
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- Case
- [2020] FCA 238
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant had demonstrated a reasonably arguable case that her allegations of poor customer service by Westpac were linked to her race, sex, or disability. The court considered the principles outlined in James v WorkPower Inc [2018] FCA 2083 and Budini v Sunnyfield [2019] FCA 2164, which established that the application for leave should focus on whether the claims were reasonably arguable, not fanciful. The court also evaluated various other factors, including the thoroughness of the AHRC’s handling of the complaint, the seriousness of the allegations, and whether the applicant had delayed in lodging her complaint.
The court found that the applicant had not established a reasonably arguable case that her poor treatment by Westpac was linked to her race, sex, or disability. The applicant’s allegations were considered to be plainly unmeritorious. Additionally, the court found that the applicant had not demonstrated that the AHRC’s process was flawed in a way that would warrant further judicial review. Consequently, the court refused the application for leave to appeal the AHRC’s decision.
ORDERS:
1. Pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth), leave to make application to this Court be refused to the Applicant.
Orders
Orders of the court
1. Pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth), leave to make application to this Court be refused to the Applicant.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Standing apart from her allegations concerning the conduct of Westpac, Ms Jones expresses concern in her written materials regarding the process by which the AHRC addressed her complaint. She submits that she was not afforded natural justice, in that the AHRC had been uncommunicative and had refused to put certain of the more serious aspects of her claim to Westpac. Ms Jones claims that she had expressed concern that the AHRC might be biased towards Westpac because the President of the AHRC and the Sex Discrimination Commissioner had both been nominated for the “Westpac 100 Women of Influence Awards”. CONSIDERATION OF WHETHER LEAVE SHOUL DBE GRANTEDPrinciples to be applied In WorkPower, Mortimer J identified the principles which her Honour considered should apply to an application for leave pursuant to s 46PO(3A) of the AHRCA as follows: 37I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including:(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and(8)other factors that are often considered in leave applications – such as prejudice to a party.39As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaurv Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.