PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Leach v Burston [2022] FCA 87
Case
[2022] FCA 87
Decision Date
CaseChat Overview and Summary
The case of Leach v Burston involves an interlocutory application for the strike out and/or summary dismissal of the applicant's Points of Claim (POC). The applicant, who was employed by the respondent's electorate office, alleges sexual harassment and discrimination during her employment. The respondent seeks to have certain claims dismissed on the grounds that they do not disclose a reasonable cause of action. The primary legal issues the court had to address were whether the applicant's claims were reasonably arguable, whether the court had jurisdiction to hear the complaints, and whether certain claims were limited to specific events. The court determined that while some claims under section 28G(2) of the Sex Discrimination Act 1984 (Cth) did not disclose a cause of action and should be struck out, the other claims were reasonably arguable and should proceed. The court found it reasonably arguable that it had jurisdiction to hear the complaint under section 94 of the Sex Discrimination Act, and dismissed the interlocutory application otherwise.
The reasoning of the court involved a detailed examination of the legislative framework, particularly sections 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) and section 94(1) of the Sex Discrimination Act 1984 (Cth). The court considered whether the applicant's claims were limited to events constituting alleged sexual harassment or discrimination and whether these issues were appropriate for determination at the interlocutory stage. The court noted that it was reasonably arguable that the court had jurisdiction to hear the complaint regarding section 94 of the Sex Discrimination Act, while the claims relating to section 28G(2) did not disclose an arguable cause of action. Consequently, the court ordered that the cause of action alleging a contravention of section 28G(2) be summarily dismissed, certain paragraphs of the POC be struck out, and the interlocutory application be otherwise dismissed. The court also set out the procedure for determining costs and scheduling a case management hearing.
Orders
Orders of the court
1. The cause of action in the Further Amended Originating Application alleging a contravention of s 28G(2) of the Sex Discrimination Act 1984 (Cth) be summarily dismissed.
2. Paragraphs 11, 12 and 13 of the Points of Claim be struck out.
3. The respondent’s interlocutory application filed on 14 September 2021 (interlocutory application) be otherwise dismissed.
4. If the parties are unable to agree orders by 24 February 2022 with respect to the payment of their costs of and incidental to the hearing of the interlocutory application, each party should by not later than that date file and serve a copy of their proposed orders as to costs, together with an outline of written submissions in support not exceeding two pages in length.
5. Costs orders will then be determined on the papers and without a further oral hearing.
6. The matter be listed for a case management hearing at 9.30 am on Friday, 18 February 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The respondent has not demonstrated that the applicant has no reasonable prospects of success in establishing the claims that she has advanced in the POC, other than with respect to the s 28G(2) claims. FACTUAL BACKGROUND On or about 1 September 2016 the applicant commenced work as a full-time member of the respondent’s electorate office staff. She was employed by the Commonwealth pursuant to Part IV of the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act). Section 20(1) of the MOPS Act provides:A Senator or a Member of the House of Representatives may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the staff of the Senator or Member The applicant contends that during that employment she was providing services to the respondent, and the respondent exercised many of the powers and responsibilities of an employer including exercising day to day control and direction over her duties. On 29 October 2018, the applicant’s employment was terminated with immediate effect because of events that had occurred over the previous weekend that are not necessary to set out for present purposes. In or about the first half of November 2018, the applicant alleges that she provided the Department of Finance with a document setting out her account of the respondent’s conduct towards her and other staff during her employment as a member of the respondent’s electoral office staff (Leach Employment Story Document). The respondent admits that the Leach Employment Story Document was provided to the Department of Finance but says he does not know and cannot admit when it was provided. On 16 November 2018, the applicant brought an unfair dismissal claim against the Commonwealth in the Fair Work Commission pursuant to Part 3-2 of the Fair Work Act 2009 (Cth) (Unfair Dismissal Claim). On 16 January 2019, following a conciliation conference and the acceptance by the applicant of a settlement offer from the Commonwealth, the Commonwealth and the applicant signed a deed of settlement that brought the Unfair Dismissal Claim to an end (Settlement Deed). On 15 November 2019, the applicant made a complaint to the Commission (Complaint). The applicant made four allegations against the respondent in the Complaint. First, the respondent had sexually harassed her within the meaning of s 28B(2) of the SD Act as a ‘fellow employee’ by reason of what was described as the ‘Pet Incident’ sometime after 1 September 2016 and the ‘Sexual Proposition Incident’ on 1 May 2018, which she alleged to be unwelcome sexual advances and engaged in unwelcome conduct of a sexual nature. Second, the same conduct amounted to ‘direct sex discrimination’ in contravention of s 14(2) of the SD Act. Specifically, she alleged that the Pet Incident and the Sexual Proposition Incident together with what was described as the ‘Sexist Hiring Comment’, which she was told about in 2018 but occurred in 2016, were breaches of s 14(2) of the SD Act because she was subjected to a detriment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; 386 ALR 331; [2020] VSCA 186, Niall, Hargrave and Emerton JJA noted the “high hurdle” faced by defendants seeking to strike out claims for failing to disclose a reasonable cause of action. Their Honours said at [35]:Uber’s contentions on ground 1 fail to grapple with the high hurdle it must cross, and the low bar confronting the plaintiff. When a defendant contends that a statement of claim should be struck out because it does not disclose a cause of action it is necessary for a defendant in the position of Uber to establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. It follows that, where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context. Operation of the SD Act Unless otherwise indicated, the provisions of the SD Act outlined below are the provisions that were in force at the time of the impugned conduct. Section 9 of the SD Act reflects the constitutional basis upon which the Commonwealth has the power to enact legislation with respect to sexual discrimination. It sets forth the specific circumstances in which the SD Act will be enlivened. It relevantly provides:(5)Sections 14, 15, 16 and 28B have effect in relation to discrimination against, and sexual harassment of:(a)Commonwealth employees in connection with their employment as Commonwealth employees; and(b)persons seeking to become Commonwealth employees. Section 14 of the SD Act is directed at discrimination in specific employment relationships and superannuation. It relevantly provides:(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:(a)in the terms or conditions of employment that the employer affords the employee;(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;(c)by dismissing the employee; or(d)by subjecting the employee to any other detriment. Division 2 of Part II the SD Act is directed at discrimination in other areas, including in connection with the supply of goods, services and facilities. Section 22 provides:(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or(c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.(2) This section binds the Crown in right of a State.