Matthews v Markos

Case [2019] FCA 1827

FEDERAL COURT OF AUSTRALIA

Matthews v Markos [2019] FCA 1827

File number: NSD 598 of 2019
Judge: ABRAHAM J
Date of judgment: 7 November 2019
Catchwords: HUMAN RIGHTS – application for leave to commence proceedings under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) – where Australian Human Rights Commission terminated the complaint primarily on the basis that it was filed more than 12 months after the alleged discrimination took place – whether application arguable and not fanciful – delay not such as to render it inappropriate to grant leave – leave granted nunc pro tunc
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PO(1), 46PO(3A)(a), 46PF(1)(b), 46PH(1)(b)

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules 2011 (Cth) r 1.32

Sex Discrimination Act 1984 (Cth) ss 14, 17

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Commissioner of Fire Brigades (New  South Wales)  v Lavery [2005] NSWSC 268

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Graham Douglas Cockerill & Ors v Westpac Banking Corporation [1997] FCA 241

HFGC Nominees (No 2) Pty Ltd v Hancock as Liquidator of 246 Arabella Investments Pty Ltd (in Liquidation) [2010] FCA 1005

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

James v WorkPower Inc [2018] FCA 2083

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460

University of Wollongong v National Tertiary Education Industry Union [2002] FCAFC 85

Date of hearing: 19 September 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 111
Counsel for the Applicant: Mr I Taylor SC with Ms B Byrnes
Solicitor for the Applicant: Milner Lawyers
Counsel for the Respondents: Ms K Eastman SC with Mr T Glover
Solicitor for the Respondents: Clyde & Co

ORDERS

NSD 598 of 2019
BETWEEN:

JUSTINE MARY MATTHEWS

Applicant
AND:

JULIUS JOHN NICHOLAS MARKOS, ALAN WILLIAM BLANCH, RODERICK STUART CAMERON, CAMERON LESLIE LEVER, STEWART WILLIAM CAMERON, DAVID FISCHL & PAUL JOHN HENDRICKS T/AS HICKSONS LAWYERS

Respondents

JUDGE:

ABRAHAM J

DATE OF ORDER:

7 NOVEMBER 2019

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to make an application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).

2.The originating application filed on 4 April 2019 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).

3.The matter is to be listed for a case management hearing on a date to be fixed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ABRAHAM J:

  1. Between 18 October 2010 and 31 December 2016 the applicant,…

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Details
AGLC
Matthews v Markos [2019] FCA 1827
Case
[2019] FCA 1827
Decision Date

CaseChat Overview and Summary

The applicant, Matthews, sought leave to commence proceedings against the respondents, Markos and another, for alleged unlawful discrimination in employment. The Australian Human Rights Commission had dismissed her complaint, primarily on the basis that it was filed more than 12 months after the alleged discrimination. Matthews applied for leave to the Federal Court to challenge the AHRC's decision. The court had to determine if the application was arguable and not fanciful, and if the delay in making the application rendered it inappropriate to grant leave. The court found that the application was reasonably arguable as it raised issues of potential unlawful discrimination and sex discrimination in the workplace. The delay was not such as to render it inappropriate to grant leave, as the applicant had provided reasons for the delay and the delay did not prejudice the respondents.

The court noted that the alleged conduct, if established, had significant and lasting impact on Matthews. The court concluded that the application was not fanciful and that the delay and other considerations did not make it inappropriate to grant leave. The court granted leave nunc pro tunc, treating the originating application as filed with leave of the Court. The court listed the matter for a case management hearing and made no order for costs at that stage. The applicant will now be able to set out her claims in a statement of claim, subject to the court's approval.

Orders

Orders of the court

1. Leave be granted to the applicant to make an application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).

2. The originating application filed on 4 April 2019 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).

3. The matter is to be listed for a case management hearing on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons below, leave pursuant to s 46PO(3A)(a) is granted to the applicant.Background This background is taken primarily from the applicant’s affidavits (including as summarised in her written submission) and so contains allegations of the alleged unlawful discrimination that the applicant will set out to establish if leave is granted, and evidence led to address the issue of the delay in making the application to the AHRC. The respondents did not provide any evidence on the application, and given the stage of the proceedings, no defence has yet been filed. Nonetheless, it was apparent from the submissions made by the parties that if leave is granted there may be factual issues in dispute which do not arise for determination on this application, and the events below are recited in that context. On 18 October 2010, the applicant commenced working in the Newcastle office of the respondents’ law firm as a “fixed profit share” partner. As the applicant was the primary carer for her two children aged 1 and 3 at the time, she worked part time. On around March 2011, the applicant was appointed “Partner in Charge” of the Newcastle office. It is the applicant’s contention that through her efforts, the annual gross fees generated by the respondents’ Newcastle office, within a 2 year period, grew from approximately $750,000 to approximately $2.2 million. In about late March 2012, the respondents transferred an associate, Najeh Marhaba, from the Sydney to the Newcastle office. He was appointed Senior Associate on 30 June 2012. The applicant deposed that, in late 2012-early 2013, she was instructed to hand over some of her insurance clients to Mr Marhaba. On 30 June 2013, Mr Marhaba was appointed a fixed profit share partner. In September 2014, in a bid to make a written case for why she should be appointed equity partner, the applicant requested financial information for specific clients and billings for the whole of the Newcastle office for each year between 2009 and 2014. The applicant submitted that on 18 September 2014, the respondents provided the applicant with financial information for the billings of some, but not all clients as requested. It is alleged that the respondents also failed to provide financial information for the whole of the Newcastle office. In February 2014, John Markos (one of the partners of the respondent firm) gave a presentation to the partners, including the applicant, and explained the importance of the firm having a “national presence” and being actively involved in “business development”. In April 2015, at the initiation of Mr Markos, the applicant transferred to the Brisbane office on the understanding that setting up that office was part of the respondents’ plan to have a “national presence” and it would assist her case for equity partnership. Prior to leaving the Newcastle office, the applicant contends that she was directed to hand over the client relationships she managed to other partners, including Mr Marhaba.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That this matter is significant to the applicant is self-evident. The alleged conduct, if established, on the applicant’s evidence, has had significant and lasting impact on her. The circumstances of the case do not need to be unusual or novel. That does not make the matter any less significant to the applicant, and if anything, arguably may provide a basis to suggest that it could have broader implications. Conclusion As discussed above, the application is reasonably arguable within the meaning of James v WorkPower Inc. The delay in this matter, and the other considerations raised are not such as to render it inappropriate to grant leave. Given the nature of the arguments as outlined above at paragraph [39], and the consideration of the relevant factors from James v WorkPower Inc above at [29] – [30] this is an appropriate case to grant leave. Having said that, attention does need to be addressed to the statement of claim to ensure that it accurately and appropriately sets out the basis of the applicant’s claims. I grant leave nunc pro tunc. The originating application filed on 4 April 2019 is to be treated as filed with leave of the Court pursuant to s 46PO(3A) of the AHRC Act.Costs The applicant submitted that if leave is granted the costs of this application should be paid by the respondents on the basis that they opposed what the applicant submitted was an obvious case in which leave would be granted. The respondents opposed the submission, submitting that it is using costs to punish them for doing nothing more than it was legally entitled to do. It is not appropriate to make the order sought. The application for leave was necessary on the basis that the complaint was dismissed by the AHRC for being filed over 12 months after the relevant act. It is the applicant who wishes to invoke the jurisdiction of the Court. It is not appropriate to make any costs order at this stage. Costs should be dealt with at the completion of the hearing.

Ratio Decidendi

Legal Principle Established

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