Kelly v Commonwealth of Australia as represented by Services Australia (formerly the Department of Human Services)

Kelly v Commonwealth of Australia as represented by Services Australia was a case before the Federal Court of Australia. The applicant, Mr Kelly, sought declarations, general and aggravated damages, and a civil penalty for alleged contraventions of the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Fair Work Act 2009, and an enterprise agreement. The Commonwealth argued that Mr Kelly, who was a student on placement as part of his Bachelor of Social Work degree, was not an employee or agent of the Commonwealth, and therefore, the court's jurisdiction was constrained. Additionally, the Commonwealth sought orders to strike out parts of the pleadings, for summary judgment, and for the question of liability to be heard separately from the question of damages.

The court was required to decide whether the student on placement was an employee or agent of the Commonwealth, whether the jurisdiction conferred by the Australian Human Rights Commission Act 1986 constrained the availability of aggravated damages, whether the enterprise agreement was contravened, and whether damages or a civil penalty could be awarded for non-economic loss.

The court dismissed the interlocutory application, finding that there were factual issues capable of being disputed and in dispute. The court held that the issues raised by the applicant should be left to a trial judge to determine after full argument and evidence. The court also found that the possibility of compensating the applicant by the award of a pecuniary penalty within allowed parameters and having regard to overall compensation for the claims he had made could not be discounted. The court held that the threshold established in the Federal Court Rules for strike-out actions has been lowered so that Courts are empowered to strike out claims that do not have "real" as opposed to "fanciful" prospects of success. However, the court found that the breach of enterprise agreement claims were not so weak that they did not disclose a reasonable cause of action.

In conclusion, the interlocutory application was dismissed, and costs were reserved. The case highlights the importance of authoritative interpretation of enterprise agreements and the potential for the development of the law in this area.