Klimentos v Health Insurance Commission

[2005] FMCA 859

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KLIMENTOS v HEALTH INSURANCE COMMISSION [2005] FMCA 859

HUMAN RIGHTS – Alleged racial and sex discrimination – summary dismissal of proceedings as disclosing no reasonable cause of action.

Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Barnes v Northern Land Council & Ors [2002] FMCA 54
Chung v University of Sydney [2001] FMCA 94

Applicant: PAM KLIMENTOS

Respondent: HEALTH INSURANCE COMMISSION

File Number: SYG1208 of 2005

Judgment of: Driver FM

Hearing date: 21 June 2005

Delivered at: Sydney

Delivered on: 21 June 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr R Cook – Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1205 of 2005

PAM KLIMENTOS

Applicant

And

HEALTH INSURANCE COMMISSION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a motion of which notice was given on 14 June 2005 seeking the summary dismissal, pursuant to rule 13.10 of the Federal Magistrates Court Rules (Cth) (“the Federal Magistrates Court Rules”), of an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which was filed on 4 March 2005 in the Federal Court. On 15 April 2005 Bennett J ordered that the matter be referred to mediation, and that the proceedings be transferred to this Court if the mediation was unsuccessful. I am told that the mediation was unsuccessful, and hence the proceedings were transferred to this Court.

2. The motion seeks the summary dismissal of the application on the basis that it discloses no reasonable cause of action, is frivolous or vexatious or is an abuse of process of the Court.  The respondent, the Health Insurance Commission (“the HIC”), also seeks its costs which are quantified in the sum of $9,363.86.  The motion is supported by the lengthy affidavit and annexures of Stephanie Slater filed on 14 June 2005 and the affidavit of service of Colleen Therese Grygier filed on 20 June 2005.  Mr Cook, who appeared for the HIC today, also presented a chronology and a folder of documents including written submissions in support of the motion.  Mr Cook also took the opportunity to make oral submissions.  I also gave the applicant, Ms Klimentos, the opportunity to make oral submissions in opposition to the motion.  After hearing the parties and reviewing the material, it is clear to me that the application by Ms Klimentos is doomed to fail.

3. Ms Klimentos made a complaint to the Human Rights Commission which was terminated on 17 February 2005 on the basis that the complaint was lodged more than 12 months after the discrimination and harassment which she had alleged.  Her complaint was brought against a Mr John Parmentia and the Health Insurance Commission, although the application before the Court only names the Health Insurance Commission as a respondent.  At first blush, the complaint that was taken to HREOC appears to be a complaint of sexual harassment and racial vilification.

4. On that basis I formed a preliminary view that I had no jurisdiction to deal with allegations of wrongful dismissal which are apparent from material filed in support of the application from Ms Klimentos.  However, on closer examination and after hearing Ms Klimentos in person, it does appear that the complaint that Ms Klimentos was seeking to agitate before HREOC and which she is seeking to pursue further before this Court is in substance a complaint that she was dismissed from her employment for a discriminatory reason.  The allegations of verbal abuse and hair pulling which were referred to in the complaint to HREOC were, in the scheme of things, minor matters. Ms Klimentos confirmed that her real concern is that she lost her job with the HIC.

5. Ms Klimentos believes that her sex and her ethnicity were factors leading to the loss of her employment.  However, that is merely her impression of things.  The documentary record establishes that serious allegations were made against Ms Klimentos which were the subject of a detailed disciplinary examination by the HIC.  The outcome of that disciplinary investigation was a recommendation that Ms Klimentos be dismissed.  Whether she was or was not in fact dismissed is not entirely clear, but what is clear is that unfair dismissal proceedings were brought before the Australian Industrial Relations Commission.

6. It seems that there were two inquiries into the asserted unfair dismissal conducted by the AIRC as well as an appeal.  During the course of those proceedings, the complaint of unfair dismissal was the subject of a negotiated outcome.  Mr Cook, for the HIC, described it as a settlement, which I am inclined to agree with on the face of the documents presented to me.  Ms Klimentos says that there was no settlement, although the documentary record discloses that she purported to release the HIC from any liability arising out of her employment in consideration of payment of the sum of approximately $13,000 and in consideration of being permitted to resign rather than being dismissed.  An attempt by Ms Klimentos to attempt to re-open the matter before the AIRC failed.

7. Even if that release from liability did not provide a bar to the exercise of statutory rights under the Commonwealth anti-discrimination legislation it would be an important matter for me to take into account in considering what, if any, relief I should provide in relation to proven discrimination.  However, there is no evidence to substantiate the subjective belief by Ms Klimentos that she lost her employment because she was a woman or because of her ethnicity.  Neither in my view is there any point in permitting the proceedings to go further because no evidence is likely to become available to support that subjective belief.  Rather, the overwhelming evidence is that Ms Klimentos lost her employment by reason of disciplinary allegations which were substantiated.

8. In these circumstances, I am persuaded that the high test for the summary dismissal of an application as disclosing no reasonable cause of action is satisfied.  Mr Cook dealt with the relevant principles in his written submissions which were drawn in part from my own decision in Chung v University of Sydney [2001] FMCA 94 and the decision of this Court in Barnes v Northern Land Council & Ors [2002] FMCA 54. Those decisions establish that the Court should be extremely cautious before dismissing an application as disclosing no reasonable cause of action. If defects in an application could be cured by pleadings or by adducing additional evidence that course should be permitted.

9. In my view, the circumstances of the loss of Ms Klimentos' employment are so clear that nothing would be achieved by permitting that course.  Her application asserting unlawful discrimination by reference to the loss of her employment must necessarily fail.  She is concerned that she suffers continuing discrimination by being refused further employment by the HIC.  Given the history of her employment it is not surprising that the HIC is unwilling to offer her further employment.  Nevertheless, if she considers that she can substantiate some ongoing unlawful discrimination that could be the subject of a further complaint to HREOC.  Also if, as appears to be the case, she considers that the resolution of her proceedings in the AIRC was in some way improper or unenforceable, she could pursue that matter further.  Those are matters, however, beyond the scope of these proceedings.

10. I am satisfied that no reasonable cause of action is demonstrated in the application. Accordingly, I dismiss the application, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.

11. On the question of costs, the application having been dismissed summarily, it is appropriate that costs should follow the event. Under the Federal Magistrates Court Rules the costs that the HIC should receive up to a first court date are approximately $2,000. This is the first court date for the proceedings in this Court. However, there have been earlier proceedings in the Federal Court involving at least one hearing and a mediation. The rules provide that in dealing with costs the Court should also take into account costs incurred in proceedings in the Federal Court prior to any transfer. If that earlier stage of the matter had been dealt with in this Court, it is likely that approximately $2,000 further would be recoverable under the cost scale applicable in this Court. This would lead to a costs outcome of approximately $4,000 or somewhat less than half of the costs actually incurred by the HIC. While that may not be an entirely appropriate outcome for the HIC, a consequence of transfer of proceedings to this Court is that parties must accept that a more modest cost outcome may be achieved than might have been achieved if the proceedings had remained in the Federal Court.

12. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

13. Given that there is likely to be an application for leave to appeal to the Federal Court, I will publish my reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 July 2005