Meshram v Bing Lee Electrics Pty Ltd
[2022] FedCFamC2G 718
Federal Circuit and Family Court of Australia
(DIVISION 2)
Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718
File number(s): SYG 2309 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 1 September 2022 Catchwords: HUMAN RIGHTS – alleged sex discrimination – alleged racial discrimination – whether shop/store is a place otherwise than in private – jokes can constitute conduct of a sexual nature
PRACTICE & PROCEDURE – summary dismissal – proceedings transferred from Federal Court – unrepresented litigant in Human Rights proceedings – multiple opportunities to rectify pleading – pleading partially summarily dismissed – remainder of pleading struck out – limited leave to re-plead
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Racial Discrimination Act 1975 (Cth) ss 9, 15, 18C, 27
Sex Discrimination Act 1984 (Cth) ss 5, 14, 28A, 28B, 28C, 94
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Cumaiyi v Northern Territory of Australia [2020] FCA 1299
Dye v Commonwealth Securities Ltd [2010] FCA 720
Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489
Leach v Burston [2022] FCA 87
Noble v Baldwin [2011] FMCA 283
Picos v Seven West Media Ltd [2015] FCA 660
Sidhu v Raptis [2012] FMCA 338
Sims v RM Capital Pty Ltd [2014] FCCA 2977
Spencer v Commonwealth (2010) 241 CLR 118
Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 307 IR 443
Division: Division 2 General Federal Law Number of paragraphs: 135 Date of hearing: 19 April 2022 Place: Sydney The Applicant: In Person Counsel for the Respondents: Mr B Rauf Solicitors for the Respondents: Coleman Greig Lawyers ORDERS
SYG 2309 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AISHWARYA MESHRAM
Applicant
AND: BING LEE ELECTRICS PTY LTD
First Respondent
BIANCA NURSOO
Second Respondent
RAMZI YOUSIF (and others named in the Schedule)
Third Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
1 September 2022
THE COURT ORDERS THAT:
1.Pursuant to r 13.13(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the following paragraphs of the Amended Originating Application filed in Federal Court proceedings NSD530/2020 (Federal Court Proceedings (subsequently transferred to this Court)) filed on 13 August 2020 (Amended Application) be summarily dismissed, together with any relevant prayers for relief appertaining thereto:
(a)any allegation made pursuant to s 9 of the Racial Discrimination Act 1975 (Cth) (RD Act) in each of [1(a)], [1(b)], [1(c)], [1(d)] and [1(e)];
(b)[1(f)] entirely;
(c)[1(g)] entirely;
(d)[3]: reference to s 28A of the Sex Discrimination Act 1984 (Cth) (SD Act);
(e)[3(a)] entirely;
(f)[3(b)] entirely;
(g)[3(c)] entirely;
(h)[3(e)] entirely;
(i)[3(g)] in relation to the tenth respondent; and
(j)[6].
2.Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) there be judgment for the respective respondents consequent upon the dismissal referred to in order 1 above, being the second, third, ninth and tenth respondents.
3.Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (together with r 1.06 and Schedule 1 of the Rules), the following paragraphs of the Amended Application are struck out:
(a)[1(d)] and [1(e)];
(b)[2];
(c)[3(d)];
(d)[3(f)];
(e)[3(g)];
(f)[3(h)];
(g)[4];
(h)[5]; and
(i)[1] and [2] of the prayers for relief.
4.Within 28 days of the date of these orders, the applicant must file and serve a further Amended Application, giving full and proper particulars.
5.In the event that the applicant does not file a further Amended Application within the time referred to in order 4 above:
(a)order 7 below is vacated;
(b)the proceedings are dismissed pursuant to rr 13.04(1)(a) and 13.05(1)(a) of the Rules;
(c)the applicant is to pay the respondents’ costs and disbursements of and incidental to these proceedings (including costs of the Federal Court Proceedings before the transfer to this Court, pursuant to r 22.05 of the Rules) as agreed or taxed pursuant to the Federal Court Rules 2011 (Cth); and
(d)no further document is to be accepted for filing by the applicant in these proceedings by the Registry, except by order of the Court.
6.For the purposes of order 4, the applicant is granted leave to re-plead only the following paragraphs of the Amended Application:
(a)[1(d)] and [1(e)] to be properly particularised in respect of s 18C of the RD Act only;
(b)[2] to properly reflect amendments to [1];
(c)[3(d)] properly particularised in relation to s 28B of the SD Act;
(d)[3(f)] properly particularised in relation to s 28B of the SD Act;
(e)[3(g)] properly particularised in relation to s 28B of the SD Act;
(f)[3(h)] properly particularised in relation to s 28B of the SD Act;
(g)[4] to properly reflect amendments to [3];
(h)[5] properly particularised; and
(i)[1] and [2] of the prayers for relief to properly reflect remaining respondents and causes of action.
7.The matter is listed for a directions hearing before Judge Given at 9.30am on Thursday 6 October 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before me is an application in a proceeding brought on behalf of all respondents to these proceedings. In essence, the respondents seek summary dismissal of the current pleading or, in the alternative, that it be struck out with no leave to re-plead.
From 22 January 2018 until her resignation on 25 February 2019 the applicant, Ms Meshram, was an employee of the first respondent, Bing Lee Electrics Pty Limited (Bing Lee) in New South Wales first at its store in Bankstown and later at its store located in Old Guildford (Store). The applicant was employed as a sales person in which capacity she was required to work at the premises of her assigned store selling various consumer goods to members of the public.
On 26 February 2019, the applicant resigned from her employment with the first respondent.
On 1 May 2019, the applicant lodged an 81-page complaint with the Australian Human Rights Commission (AHRC) making allegations against the first respondent and 13 of its employees in their individual capacities (AHRC complaint). The AHRC complaint was terminated pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) upon a delegate of the AHRC President being satisfied that there was no reasonable prospect of the matter being settled by conciliation.
On 11 May 2020 the applicant commenced proceedings in the Federal Court of Australia against Bing Lee and 15 individual respondents. The originating application was not freshly pleaded. Rather, the applicant annexed the AHRC complaint to her application and, under the heading “Details of claim under the Australian Human Rights Commission Act 1986”, she wrote “Please refer to (1) copy of original complaint to AHRC attached for unlawful discrimination claims”. Similarly under the heading “Remedy sought” the applicant again cross-referred to the remedies sought in the AHRC complaint.
The matter was initially returned in the Federal Court for a case management hearing before her Honour Charlesworth J on 9 July 2020 at which hearing the applicant was unrepresented. At that case management hearing, Counsel for the respondents highlighted various deficiencies in the originating application. As the applicant was unrepresented, Charlesworth J requested that these deficiencies be set out in writing for the applicant’s benefit and she was given the opportunity to amend with orders being made to explain to the applicant how to go about that amendment process. The applicant was told by Charlesworth J that in the event the Amended Application was not sufficiently clear, one potential consequence may be the making of a strike out application.
On 20 July 2020 the solicitor for the respondents wrote to the applicant as requested by the Court, to explain the deficiencies in the originating application.
On 13 August 2020, the applicant filed an Amended Originating Application (Amended Application) in accordance with the orders of the Court. It is that Amended Application in respect of which the current application in a proceeding is brought.
The proceeding was next before Charlesworth J for a case management hearing on 27 August 2020. On that occasion the respondents renewed their concerns about the imprecision and lack of material facts included in the Amended Application. Her Honour Charlesworth J observed that because the applicant was unrepresented, and the matter was within the Court’s Human Rights jurisdiction, a degree of leeway would be applied as to the level of formality required. It was indicated by Charlesworth J that if the respondents intended to bring an application of summary judgment or strike out, they were urged to wait until after they had filed a concise statement and also after the provision of summaries of the applicant’s evidence, in order to better assess the appropriate course to be adopted. In respect of the preparation of summaries of evidence from witnesses, the Court again explained at length to the applicant the nature and quality of evidence required in order to suffice. The applicant was told that, in addition to her own witness statement, she would “need to file a witness statement for each person who will be a witness” in her case. Her Honour Charlesworth J indicated that the applicant would be given a “generous amount of time” for the preparation of her witness statements and indeed order 1 was made to this effect, allowing until 29 October 2020 for the filing of those statements.
On 23 October 2020 the applicant wrote to the Court to seek an extension of the time in which to file the witness statements. The extension was opposed by the respondents and the matter was returned before the Court on 29 October 2020 for a case management hearing. On that occasion, it became apparent that the applicant had taken no steps to prepare witness statements. The Court, in admonishing the applicant for not having taken proper steps to comply with its orders explained to her that the Court could, of its own motion, dismiss her claim before it proceeded to hearing. Notwithstanding that the Court was not satisfied that the applicant had a reasonable explanation for failing to comply with orders, it gave the applicant a further chance to file all the witness statements upon which she intended to rely, within four weeks. The applicant was asked who the witnesses were intended to be, and in particular whether it was the applicant only or whether there would be others. The applicant stated that there “may be many” witnesses but it was not possible to confirm at that stage. The Court also indicated that depending on the contents of the witness statements, if they did not evidence conduct alleged to have been engaged in by a particular respondent, the Court may strike out those parts of the claim. The applicant was also informed that unless the witness statements were filed, the matter would not proceed to Court-facilitated mediation.
On 20 November 2020 a Notice of Address for Service was filed with the Court which had the effect of appointing a solicitor for the applicant. On 26 November 2020, an unsworn witness statement was filed for the applicant (Witness Statement). The matter proceeded to mediation on 22 March 2021, which was unsuccessful. On 23 March 2021 the applicant’s solicitor ceased to act for her. On 15 December 2021, Charlesworth J made an order transferring the matter to this Court which was subsequently docketed to me.
Application in a proceeding
At the first directions hearing of the matter before me, the respondents evinced an intention to bring the instant application in a proceeding in circumstances where such matters had been canvassed consistently at the case management hearings before the Federal Court. Orders were made permitting that application to be made, together with a consequential timetable.
By the application in a proceeding filed on 11 March 2022 the respondents seek the following orders:
(a)summary dismissal of the following paragraphs:
(i)[1] (alleging breaches of ss 9 and 18C of the Racial Discrimination Act 1975 (Cth) (RD Act)) and [3] (alleging contraventions of ss 28A and 28B of the Sex Discrimination Act 1984 (Cth) (SD Act) of the Amended Application against the second to eleventh respondents (inclusive));
(ii)[2] (vicarious racial discrimination claim) and [4] (vicarious sex discrimination claim) of the Amended Application against the first respondent; and
(iii)[5] (company discrimination claims) and [6] (company penalty claims) of the Amended Application against the first respondent; or
(b)in the alternative to summary dismissal, an order for strike out of [1] to [6] (inclusive) of the Amended Application; and
(c)costs.
As will be apparent from the matters set out at [6] to [10] above, the applicant has been on notice since the inception of the proceedings in the Federal Court that the respondents take issue with her application, including since its amendment in August 2020.
Relevant leGISLATion and principles
Section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides for the Court to give judgment in favour of a respondent if it is satisfied that the applicant has “no reasonable prospect of successfully prosecuting the proceeding”. For these purposes, s 143(3) makes it plain that the proceeding need not be hopeless or bound to fail in order for it to have no reasonable prospect of success.
Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides that:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The Rules do not (themselves) make provision for strike out. However the effect of r 1.06 and Schedule 1 to the Rules is that r 16.21 of the Federal Court Rules 2011 (Cth) (FCA Rules) applies in this Court. That rule provides:
Application to strike out pleadings
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
In Leach v Burston [2022] FCA 87, Halley J recently distilled the relevant principles in relation to summary dismissal and strike out at [36] to [38] in such a way as to warrant their reproduction in full:
[36] The principles relevant to summary dismissal can be summarised as follows:
(a) the discretion to summarily dismiss proceedings should be exercised if, and only if, the Court is satisfied that there is no reasonable prospect of success: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ);
(b) the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail: Spencer at [52];
(c) the use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128]-[129] (Gordon J);
(d) full weight must be given to the expression “no reasonable prospect” as a whole, and it might readily be accepted that the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [60]
(e) particular caution to exercise the discretion is required if there are factual disputes and evidence is not in a final form: Houston v New South Wales (No 2) [2021] FCA 637 (Houston) at [5(d)] (Griffiths J); Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [43] – [45] (Rares J);
(f) appropriate account needs to be taken of the possibility that existing authority may be overruled, qualified or further explained; summary dismissal must not be used to stultify the development of the law: Houston at [5(e)] (Griffiths J); Spencer at [25]; Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [35] (Allsop CJ, Marshall and Mansfield JJ); and
(g) the party seeking summary dismissal bears the onus of establishing the proceeding or defence has no reasonable prospects of success: Kitiko v University of Technology Sydney [2021] FCA 360 at [55] (Griffiths J).
[37] The principles relevant to the power to strike-out pleadings can be summarised as follows:
(a) the power should be employed sparingly and only in a clear case: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 (Polar Aviation) at [42]–[43] (Perram, Dodds-Streeton and Griffiths JJ). Normally, the power to strike-out should be exercised where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455;
(b) if a pleading is strike-out, a Court will ordinarily permit the party to replead unless it would be futile to do so: Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA at [208] (Merkel J); Houston at [6];
(c) a reasonable cause of action means a case with some chance of success having regard to the pleaded allegations. The mere fact that at an interlocutory stage a case appears to be weak is not sufficient to justify striking out the proceeding: Polar Aviation at [42]; cf Davey v Bentinck [1893] 1 QB 185;
(d) the pleadings must state all material facts necessary to establish the cause of action and the relief sought: Wride v Schulze [2004] FCAFC 216 at [25] (Spender, Tamberlin and Bennett JJ); Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13 (Scott LJ);
(e) failure to plead all material facts does not necessitate exercise of the discretion. Restraint will be appropriate where the omission has not caused confusion nor raised substantive principles, or where the deficiency can be resolved through the provision of further particulars or evidence: Deep Investments Pty Ltd v Casey [2018] FCA 603 at [211] (Gleeson J) citing HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59]; Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41–691 at 42 ,828–9;
[38]In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; 386 ALR 331, 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 strike-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.
In reaching the decision I have in respect of this application in a proceeding approached the assessment of the Amended Application and the question of the dismissal of certain claims (including the consequence of removing certain applicants) with caution noting the principles expounded in Spencer v Commonwealth (2010) 241 CLR 118 at 131. It is well established that the Court ought not take steps to prevent the applicant prosecuting her case in the normal way unless the need for summary judgment is clear: see Hicks v Ruddock (2007) 156 FCR 574 per Tamberlin J at 582. In my view, in the instant case in respect of a number of pleaded matters, it is.
Ordinarily, it is not appropriate to grant summary judgment in a case in which there is a real dispute between the parties as to issues of fact: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 per Besanko J at [10]. The applicant’s own Witness Statement is the only evidence filed to date and she was given two opportunities by Charlesworth J to file it, together with a précis of evidence of any, and all, other witnesses who should testify at a hearing. Despite this, no witness statements have been produced beyond the applicant’s own and it is open to the Court to surmise that no better evidence will be forthcoming after the proceedings have been on foot for more than two years. Moreover, since most of the incidents are alleged to have taken place in interactions between the applicant and various individual respondents at a time when it is open to infer there were no other persons present (other than the respondents) and the individual respondents have indicated that they deny outright all allegations, the factual contest has distinct limitations.
Further, to my observation the applicant (who is representing herself) approaches her assessment of the case from a heightened emotional state which potentially obscures objective and forensic decision making on her part – quite aside from the fact that she is not legally trained. I make no criticism of the applicant in either regard but while there is a sufficient basis to allow some claims to remain for determination on a final basis (if properly pleaded), it would be deleterious to the applicant herself, and to the respective respondents, if she were allowed to prosecute claims which have no reasonable prospect of success.
While the application in a proceeding seeks summary dismissal under either of r 13.13(a) or (c) of the Rules, the submissions made for the respondents in this regard relate predominantly to whether the proceeding has a reasonable prospect of success. The alternative relief sought, being summary dismissal as an abuse of process, was cast in submissions as being constituted by the applicant failing to disclose a proper cause of action and that, when that defect was brought to the attention of the applicant, she nonetheless maintained it: see Sims v RM Capital Pty Ltd [2014] FCCA 2977 per Judge Lucev at [69].
The applicant groups conduct together under various statutory provisions. It is unnecessary to set out all of those provisions in these reasons. However, one important aspect of the allegations made pursuant to s 18C of the RD Act is that in order to constitute a contravention conduct must not be done in private, a term which is defined (by exclusion) in s 18(C)(2) as follows:
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
Relevant to the instant case is whether or not the first respondent’s Store was a public place. In Sidhu v Raptis [2012] FMCA 338, Smith FM found that words were spoken “otherwise than in private” for the purposes of s 18C(1), within the extended meaning of that term given by s 18C(2) and (3), because they were said in a shop. The relevant area of the shop was a “‘public place’ because it was a ‘place to which the public had access … by invitation’” (at [19]). In so finding, his Honour rejected the submissions by the respondent that the fact words were uttered for a private purpose or in the course of a particular personal relationship within the shop prevented the operation of the extended definition.
In the context of the current case, the fact that conduct is said to have occurred or statements are alleged to have been made within the premises of the first respondent’s Store/s is not a complete answer to whether they occurred otherwise than in private for the purposes of s 18C of the RD Act. Much will turn on the situational context of the alleged occurrences. For example, if an act is done in shop premises before or after hours, or within an area of the Store reserved for employees only, then within those parameters it would not be a place to which the public has access by right or invitation.
While the Amended Application is pleaded in groupings by reference to the nature of the contraventions themselves, in order to assess whether the allegations pleaded have a reasonable prospect of success, it is more convenient to deal with the allegations in respect of the individual parties.
Given the vicarious liability allegations, the assertions against the first respondent will be addressed after those in relation to the individual respondents.
Second respondent
The second respondent, Bianca Nursoo, was (and may still be) employed by the first respondent in the position of Head of Training, Development & Merchandising. The second respondent is alleged to have contravened the RD Act (but not the SD Act) by making the following comments in the presence of the applicant at the first respondent’s Store (Amended Application at [1(g)]):
(a)in December 2018 in the television section of the Store, the second respondent is alleged to have said to another employee (who is the seventh respondent) the following about a customer, in earshot of the applicant “…don’t worry about that Indian bitch who complained about you…” (Amended Application at [1(f)]); and
(b)on 7 December 2018, the second respondent allegedly called the applicant an:
(i)“Indian bitch”;
(ii)“fucking Indian”; and
(iii)“a fucking Indian bitch”.
The second respondent denies the matters referred to in [28(a)] and [(b)] of the Amended Application occurred at all.
In relation to the event referred to in by [1(f)] of the Amended Application, the applicant says that this statement was made during a staff induction meeting. The applicant says she was very offended by the statement. I am prepared to accept that she was. However, even if made out as having occurred, and while unpleasant, it does not have a reasonable prospect of success of constituting a contravention of s 9 of the RD Act. The act or conduct alleged by [1(f)] was not an act involving a distinction, exclusion, restriction or preference based on race. It was also not directed to or even about the applicant.
In addition, in relation to s 18C of the RD Act, even if the applicant were able to establish that the conduct alleged by [1(f)] of the Amended Application constituted an act which is reasonably likely to offend, insult, humiliate or intimidate another person or group of people, on the applicant’s own version of events it took place during a staff induction meeting which would not satisfy the requirement that it was done otherwise than in private because a staff induction meeting was not a place to which the public had access (see above at [25]). Accordingly, in my view this allegation lacks a reasonable prospect of success.
The events said to give rise to the act alleged in [1(g)(ii)] of the Amended Application arise from an event alleged to have taken place after staff were asked to leave the Store. The applicant alleges she was locked in the Store by three of the respondents who are managers employed by the first respondent, one of whom is said to be the second respondent.
By her Witness Statement the applicant says that these managers closed the security doors to the Store and locked them. It also says, somewhat in contradiction to that description, that the applicant had been leaving the Store together with other staff when all three managers allegedly yelled at once “stop Ash”, and asked all the other staff to leave the Store while keeping the applicant inside.
Following the alleged incident which is referred to in the preceding two paragraphs, the second respondent is then alleged to have yelled at the applicant (apparently in unison with the fifth respondent):
…you are showing me attitude, you fucking Indian bitch
while they (apparently both) stared at her with enlarged eyes and (apparently both) pointed their fingers at the applicant’s face.
The second respondent denies that the incident happened at all.
In my view, for the same reasons set out in [31] above, even if the incident were to be established as having taken place it is said to have taken place within the locked Store devoid of customers and all staff, save for the applicant and three of the individual respondents. On the applicant’s own evidence the Store at that time was locked (including to staff) was so not a place to which the public had access by right or invitation. The incident, even if it took place (which is denied by all three of the individual respondents who are said to have been present) was a discussion among co-workers in a store which was devoid of the public and of any other staff: see Noble v Baldwin [2011] FMCA 283 per Barnes FM (as her Honour then was) at [158] and [165] to [167]. Accordingly, [1(g)(ii)] of the Amended Application does not have a reasonable prospect of success.
This then leads to the question of what relief sought in the application of a proceeding ought be granted in circumstances where the second respondent seeks firstly an order that [1] of the Amended Application be dismissed insofar as it pertains to her or, in the alternative, that it be struck out, the likely corollary of which would be that the applicant be granted further leave to re-plead.
In my view, the latter course has no utility in relation to the allegations made against the second respondent. That is because, short of altering the evidence the applicant has already presaged she intends to give by the Witness Statement, the conduct alleged does not satisfy the statutory test.
Therefore, [1(f)] and [1(g)(ii)] of the Amended Application should be dismissed as against the second respondent pursuant to r 13.13(a) of the Rules.
It is therefore strictly unnecessary to consider whether r 13.13(1)(c) applies. However, there is some force also to the proposition set out in Sims (supra) (see [22] above). Noting that the applicant was given considerable leeway by the Federal Court to refine and remedy the pleadings and evidence in this matter including with assistance from the respondents which was tantamount to an instruction manual. Accordingly, an order pursuant to r 13.13(1)(c) would also have been an apposite way for the Court to proceed.
Third respondent
The third respondent, Ramzi Yousef, was (and may still be) employed by the first respondent in the position of Store Manager. By [3(e)] of the Amended Application the third respondent is alleged to have contravened the SD Act (but not the RD Act) in the presence of the applicant at the first respondent’s Store by staring at the applicant’s breast/s and saying:
…oh you are still carrying these papers in your pocket, you silly woman, it looks so funny.
This alleged incident is said to be a contravention of ss 28A and 28B of the SD Act.
The third respondent denies that this interaction occurred at all.
Any allegation that s 28A of the SD Act has been “breached” is misconceived because that section provides a definition for the purposes of other sections of the Act.
The applicant alleges a breach of s 28B (presumably s 28(6) of the SD Act) by saying that the third respondent engaged in sexual harassment by commenting about the fact that there were papers in the breast pocket of the applicant’s uniform. The applicant’s evidence is that there were in fact papers in that pocket. Accordingly, even on her own evidence the comment was directed to the situation involving her papers and the uniform.
At the hearing of the application in a proceeding the applicant drew the Court’s attention to Annexure “AM-6” to her Affidavit of 14 April 2022 which is a photograph showing five people dressed in uniforms, some of which display the name “Bing Lee”. Depicted in the photograph are both men and women. The applicant has drawn a circle by hand on the photograph to note the location of the pocket on one of the female’s uniforms. It appears to be a polo shirt with a pocket on the upper left had side under the name “Bing Lee”. Similarly, the traditional (as opposed to polo) shirt being worn by a male to that person’s immediate right also has a left breast pocket under the name “Bing Lee”.
The applicant’s Witness Statement differs from the Amended Application insofar as it uses a more evocative adjective to describe the third respondent’s action as being “leering” and not “staring” as is pleaded. However, in circumstances where the incident is entirely denied and where, even on the applicant’s own evidence, she was carrying papers in the pocket and that the pocket happens to be located on the breast of a polo shirt, there does not appear to me to be a reasonable prospect of establishing to a reasonable person that this was conduct of a sexual nature. From Exhibit “AM-6” to the Affidavit of 14 April 2022 which the applicant herself advances, it is open to infer that the shirts worn by staff of the first respondent consistently have a left breast pocket irrespective of the gender of the wearer.
It would also not be unreasonable to assume that a Store Manager may, from time-to-time, legitimately give instructions about the manner in which the staff uniform is being worn or should otherwise be worn. On her own evidence the applicant had placed papers in that pocket and the third respondent commented that this did not look right. Without more than the applicant’s uncorroborated allegation that she subjectively felt sexually harassed by a comment which pertained to an anodyne fact she herself admits, I am not satisfied that this allegation has a reasonable prospect of success.
In my view, [3(e)] of the Amended Application should be dismissed as against the third respondent pursuant to r 13.13(a) of the Rules (although I repeat my observations at [40] above which apply similarly in respect of the third respondent). Given that this is the only allegation made in relation to the third respondent, it follows that the proceedings are dismissed against the third respondent.
Fourth respondent
The fourth respondent, Mario Iacono, was (and may still be) employed by the first respondent in the position of Store Manager. The applicant makes allegations against the fourth respondent in [1(d)] and [1(e)] of the Amended Application that the fourth respondent contravened the RD Act (but not the SD Act) in two separate incidents in early November 2018 and December 2018 (respectively) in the presence of the applicant at the first respondent’s Store by:
(a)saying to the applicant at her desk (Amended Application [1(d)]):
Ash, can you give me more details about these bloody turban wearing Indians? What Punjabis? So you don’t want to provide details? I will only have to find out, bloody bastard Indians;
(b)saying to the applicant (at an unspecified location) (Amended Application [1(e)]):
…are you real husband and wife or fake? Oh I mean people from your Indian cultural background do fake marriages by paying money fraudulently to enter Australia and then go their separate ways. Are you also one of them?
Prior to addressing the specific allegations made by [(1)(d)] and [1(e)], it is necessary to note that they do not substantially accord with the content of the applicant’s Witness Statement which should underpin them.
Rather, there are matters raised in the Witness Statement which do appear to have been included in the applicant’s AHRC complaint. This is significant because s 46PO(3) of the AHRC Act limits the matters which are able to be the subject of an application to the Court by requiring they have a close relationship with the conduct which was the subject of the AHRC complaint.
While the limitation has been held to allow an applicant to claim that in a proceeding before a Court that facts alleged in a complaint to the ARHC constitute unlawful discrimination of a different legal character, the facts complain of must be substantially the same: see Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [14] to [20] per White J. In essence it would not be enough that an act is similar to those complained of in a complaint made to, and terminated by, the AHRC or even that the allegation is made in relation to the same individual respondent. A new claimed incident is different from, and not the same or substantially the same conduct: see Dye v Commonwealth Securities Ltd [2010] FCA 720 per Katzmann J (at first instance) at [105].
In my view to the extent that the Witness Statement raises additional matters in relation to the fourth respondent, these are not allegations to which the Court can have regard in assessing the reasonableness of any prospect of success the applicant has as against the fourth respondent.
I now turn to the Amended Application as pleaded together with the relevant parts of the Witness Statement which can be considered. Each of the incidents referred to in [1(d)] and [1(e)] of the Amended Application is pleaded as being a contravention of ss 9 and 18C of the RD Act. Each of the allegations is wholly denied by the fourth respondent.
In relation to the incident alleged in [1(d)] of the Amended Application, the Witness Statement merely repeats that paragraph. In submissions at the hearing of the application in a proceeding it became apparent that this statement which is attributed to the fourth respondent related to a customer and was not directed to, or about, the applicant. In this regard, I find again that even if the applicant were able to make this incident out as having occurred, while it may have been unpleasant for her it does not have a reasonable prospect of success of constituting a contravention of s 9 of the RD Act. The act or conduct alleged by [1(d)] was not an act involving a distinction, exclusion, restriction or preference based on race and was not directed to or even about the applicant. Accordingly, in my view that allegation does not have a reasonable prospect of success in respect of s 9 of the RD Act.
In relation to s 18C of the RD Act, there was some conjecture at the hearing of the application in a proceeding about whether the applicant’s desk at the Store was located in a public area. Counsel for the respondents hypothesised that the desk must be in private. However, in oral submissions the applicant asserted that:
my desk was in the centre of the Store, where all the customers go around, and they could easily witness and hear, so it was in the public.
There is presently no evidence before the Court as to the location of the applicant’s desk within the Store but, presumably, marshalling such evidence would not be a difficult task. Giving the applicant the benefit of the doubt for the purposes of the application in a proceeding, I am prepared to accept (at this interlocutory stage) her assertion that her desk was in a public part of the first respondent’s Store. However it remains a matter for pleading and especially for probative evidence. There is also nothing in the Amended Application or the Witness Statement about the time of day or the circumstances in which the alleged statement was said and so it remains possible the applicant seeks to allege that it was at a time the public had access as of right or by invitation. Again, it is a matter for pleading and evidence.
While the present state of the Amended Application in relation to s 18C of the RD Act is ambiguous as regards the fourth applicant, it remains possible that if re-pleaded it may give rise to a cause of action which might properly make an allegation under that section.
Accordingly, I am not satisfied that [1(d)] ought be dismissed, however I am satisfied it ought to be struck out pursuant to r 16.21(1)(d) of the FCA Rules with a limited leave to re-plead which will be addressed by orders which I will make.
In relation to the matters pleaded in [1(e)], I again cannot see any reasonable prospect of successfully establishing a contravention of s 9 of the RD Act constituted by the allegation. The alleged statements/questions about the applicant’s marriage do not allege an act involving a distinction, exclusion, restriction or preference based on race.
In relation to s 18C of the RD Act, the Amended Application and Witness Statement are silent as to the location and time of day leaving a prospect that the statements might in all the circumstances constitute an act done otherwise than in private which, if made out on probative evidence, offend, insult, humiliate or intimidate another person or a group of people. Accordingly, the present state of the Amended Application in [1(e)] is ambiguous in relation to s 18C of the RD Act. While I am not satisfied that [1(e)] ought be dismissed, I am satisfied that it should to be struck out pursuant to r 16.21(1)(d) of the FCA Rules, again with a limited leave to re-plead which will be addressed by orders which I will make.
Fifth respondent
The fifth respondent, Richard Cortes, was (and may still be) employed by the first respondent in the position of Assistant Manager.
The applicant makes allegations against the fifth respondent in [1(g)(i)] of the Amended Application that the fifth respondent contravened ss 9 and 18C of the RD Act on 7 December 2018 by participating in the alleged incident which has been summarised at [32] to [34] above. Paragraph [1(g)(i)] of the Amended Application alleges that during that incident the fifth respondent:
…repeatedly called the Applicant a “fucking Indian bitch, an “old Indian bitch” and a “nasty Indian bitch” and said words to the effect of: “I don’t give fuck about you nasty Indians, I hate you fucking Indian bitch, leave from here.
The Witness Statement says in relation to this incident that the fifth respondent “aggressively yelled” the following, lengthy monologue at her (errors in original):
…you are a disgusting woman, a women of your age 40-45 years should be ashamed, 20 -30 years age staffs like Van, Ken, Yasin, Hayder, Charlie, Fateen, Martin are better than you old disgusting woman of 40-45 years age, they are more flexible than you Indian bitch. you are old grinch, you are a snake, you fucking Indian bitch, you always want to take and never give back in return, you nasty Indian bitch, you are nasty snake, you are complaining about all staffs and managers, you are fucking nasty woman, I don't respect you, you have lost your integrity, you are old grinch, you are disgusting bitch, Martin is better man than you, you are a nasty woman, you are complaining about Martin, Ming, ken and me, you should be sacked, instead of them. Ming, ken and Martin are better man than you nasty disgusting woman. You are complaining about me, I don't give fuck about you nasty Indians, I hate you fucking Indian bitch, leave from here. You think you are number 1 saleswomen, I tell you fucking Indian bitch, ken is the number 1 salesman and you are not, you are fucking nasty woman, Ken is a great man I will repeat again and again he is a great young man, you are nothing in front of him, you are old Indian bitch, I do not respect you fucking women, I do not want you here, leave from Bing Lee, otherwise we all will be making your complain to HR to sack you on Monday.
By the Witness Statement the applicant also alleges that the fifth respondent engaged simultaneously and in synchronicity with the second respondent as set out in [34] above.
The fifth respondent denies these interactions took place at all.
In relation to s 9 of the RD Act, the applicant does not allege that the fifth respondent acted on any of the statements he is alleged to have made as extracted at [65] above. There is nothing otherwise which suggests that this incident, or the alleged group address in unison at [32] to [34] above satisfied, any of the matters in s 9 of the RD Act such that it would have a reasonable prospect of making out a contravention thereof.
To the extent that the same conduct is said to constitute a breach of s 18C of the RD Act then, as discussed in relation to the second applicant above, even if the incident were proven to have happened, the applicant alleges that it took place within the locked Store, absent staff (other than her and the three alleged individual respondents). Accordingly, the first respondent’s Store was not a place to which the public had access by right or invitation at that time and [1(g)(i)] does not have a reasonable prospect of success.
The alleged statement, even if it were capable of being proven to have been said (a matter which is denied), was a discussion among co-workers in a Store which devoid of the public and any other staff: see Noble v Baldwin per Barnes FM (as her Honour then was) at [158] and [165] to [167]. If the applicant had brought proceedings under the Fair Work Act 2009 (Cth), there may have been any number of issues arising from this alleged incident. However, the applicant has made a conscious decision to pursue and maintain the causes of action in the Amended Application instead. In my view the matters pleaded in [1(g)(i)] of the Amended Application should be dismissed insofar as it pertains to the fifth respondent pursuant to r 13.13(a) of the Rules.
The applicant also makes allegations against the fifth respondent pursuant to s 28B of the SD Act, namely that in her presence or during the course of engaging in behaviour in the workplace, the fifth respondent:
(a)grabbed the collar of the applicant’s polo shirt, placing his hands inside the collar and touching the skin of the applicant’s chest while pulling her towards him (said to be before 9:00am on 30 June 2018) ([3(a)]). By the Witness Statement the applicant provided further context to this interaction and said that the fifth respondent was demonstrating how he had, on a previous occasion, grabbed the collar of a male colleague who had annoyed him;
(b)in mid-November 2018 the fifth respondent said the following in the presence of the applicant while talking about a client having been interested in a particular product ([3(d)]), after which he allegedly placed his hands around the applicant’s shoulders:
yeah, wife just remembered very very long size;
(c)showed the applicant a mobile telephone at which he and the tenth respondent had been looking, when the applicant specifically requested that it be shown to her. The telephone screen is said to have contained a cartoon image of a female naked from the waist down with her legs spread and vagina showing. While the Amended Application is ambiguous as to which of the fifth and tenth respondents showed the applicant the telephone, the applicant’s Witness Statement alleges that it was the fifth respondent who did so ([3(g)]); and
(d)on or about 21 November (no year provided) the fifth respondent allegedly stared at the applicant’s breasts and said to her ([3(h)]) (errors in original):
Oh honey, its so funny, your boobs look so unequal.
which, by her Witness Statement the applicant says took place in a context where she had multiple notepads in her front breast pocket.
The fifth respondent denies that each and all of these alleged events took place.
In relation to the incident alleged by [(3(a)] of the Amended Application, I am of the view that this does not have a reasonable prospect of success. By the applicant’s own Witness Statement she has provided a more fulsome context to the allegation. If the event took place then, while unpleasant and possibly giving rise to some other workplace contravention which the applicant has elected not to pursue, it is not (on her own evidence including handwritten notes annexed to her Witness Statement which are said to be contemporaneous with the alleged event) conduct of a sexual nature. Accordingly, I would dismiss [3(a)] of the Amended Application.
In relation to the remaining incidents alleged against the fifth respondent, the written submissions filed for the respondents place reliance on the definition of “workplace” for the purpose of construing the conduct in the context of s 28B of the SD Act, citing Picos v Seven West Media Ltd [2015] FCA 660 per Perry J at [40].
Considering the remaining paragraphs individually, while I accept that [3(d)] lacks precision in this way, the applicant’s Witness Statement appears to suggest the alleged incident was in the Store at a time when the applicant was serving customers. At the hearing of the Application in a Proceeding, Counsel for the respondents submitted that to the extent the alleged incident was said to be “unwelcome conduct of a sexual nature”:
This isn’t. It might be offensive, might be improper, might be inappropriate, all of those things, but none of that satisfies the requirements of the definition in section 28A. And we say that that’s critical in terms of the contravention put and there’s a question as to while it appears to be jocular and there is a further question as to whether it constitutes or is of a sexual nature, in any event we say it’s not based or in relation to the applicant, so it doesn’t travel any further.
I respectfully disagree that this characterisation of jocularity as being an end to the allegation.
As was recently considered by McCallum JA (as her Honour then was) in Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 307 IR 443 at [125] (emphasis added):
I agree that the appeal must fail for the reasons stated by Bell P and Payne JA I wish only to add the following remarks in respect of ground 5(a), which challenged the correctness of the test applied by the Appeal Panel to determine whether the conduct complained of was “conduct of a sexual nature” within the meaning of s 22A of the Anti-Discrimination Act 1977. It was common ground that the poster depicting Ms Yelda was designed for the purpose of conveying a work safety message in what was established to be a male-dominated workplace. One of the arguments in support of ground 5(a) was that the depiction in that context of a woman feeling great because she lubricates could not amount to sexual harassment because its sexualised message was not “explicit”. The sexualisation of women in the workplace often isn’t. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8] –[12] . In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.
To the extent that the submission for the fifth respondent is that this conduct was simply “jocular” and therefore akin to “horseplay” then in addition to the comments of McCallum JA in Vitality Works, I would also add the following from the plurality in that case at [36] where Bell P and Payne JA stated (emphasis added):
[35] The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute. In a leading text concerning sexual harassment, which was quoted in submissions by Vitality Works, the following passage appears (Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, 2018, Federation Press) at 640):
[12.3.24] The [Sex Discrimination Act 1984 (Cth)] definition of ‘sexual harassment’ strikes a balance between competing interests by providing some protection to unthinking and unwelcome, but genuine, suitors, and to people who engage in horseplay, by requiring proof of an objective element which evaluates the behaviour in question from the perspective of the reasonable person.
[36] No doubt contrary to the intention of the learned authors, it would appear that this passage may have been understood by some as introducing the concept of conduct found to be “horseplay” as being somehow immune from characterisation as “sexual conduct”. We reject that suggestion. It is a serious error to contrast “horseplay”, whatever that non-statutory term is supposed to mean, with “other unwelcome conduct of a sexual nature”. A finding of fact that conduct amounts to “horseplay” is irrelevant to the question of whether that conduct should be characterised as “other unwelcome conduct of a sexual nature”. Conduct which may be characterised as “horseplay” — an imprecise concept — is not immune from being found to be sexual harassment.
Therefore, given that the only real complaint made by the respondents about [3(d)] of the Amended Application is that it lacks specificity as to the location in which it alleged to have taken place, but given what is alleged could, if established, otherwise constitute a breach of s 28B of the SD Act, in my view it should be struck out pursuant to r 16.21(1)(d) of the FCA Rules, again with a limited leave to re-plead which will be addressed by orders which I will make.
In relation to [3(g)] of the Amended Application which alleges the applicant was shown a naked image on a mobile telephone by the fifth respondent, I would make the same point as in the preceding paragraph in relation to this allegation. Whether or not the incident, which I again note is denied, is unwelcome conduct of a sexual nature may be a real contest and is not without a reasonable prospect of success. Accordingly, in my view [3(g)] of the Amended Application insofar as it pertains to the fifth respondent should be struck out pursuant to r 16.21(1)(d) of the FCA Rules, again with a limited leave to re-plead which will be addressed by orders which I will make. I will address this paragraph again in due course to the extent it makes an allegation against the tenth respondent.
In relation to the allegation in [3(h)] of the Amended Application, I make the same comments in relation to the ambiguity of the location as has been made in relation to the other paragraphs of ground 3 of the Amended Application which pertain to the fifth respondent. By her own evidence the applicant again accepts that she had filled her uniform’s breast pocket with papers. However, unlike the alleged comment made by the third respondent which pertained to the papers themselves, the fifth respondent is alleged to have commented not about the papers or the whether the applicant’s uniform was being worn in a correct way, but about the applicant’s breast/s. There remains a reasonable prospect that this could give rise to a contravention of s 28B of the SD Act if properly particularised and then made out.
For this reason, [3(h)] of the Amended Application should be struck out pursuant to r 16.21(1)(d) of the FCA Rules, again with a limited leave to re-plead which will be addressed by orders which I will make.
Sixth respondent
The sixth respondent, Claudio Musa, was (and may still be) employed by the first respondent in the position of “Manager – Clearance Outlet”.
The applicant makes allegations against the sixth respondent in [1(g)(iii)] of the Amended Application that the sixth respondent contravened ss 9 and 18C of the RD Act on 7 December 2018 by participating in the alleged incident which has been summarised at [32] to [34] above. Paragraph [1(g)(iii)] alleges that the sixth respondent called the applicant:
… a “fucking Indian” and “Indian slut”.
The allegations are entirely denied.
For the same reasons addressed in relation to the second and fifth respondents, I am not satisfied that these allegations have a reasonable prospect of success in relation to s 9 of the RD Act. In relation to the allegations being pleaded as contravening s 18C of the RD Act, then again on the applicant’s own evidence these events allegedly took place at a time when the Store was not a place that was otherwise in private. In my view the matters pleaded in [1(g)(iiii)] of the Amended Application should be dismissed insofar as it pertains to the fifth respondent pursuant to r 13.13(a) of the Rules. This has the effect that [1(g)] of the Amended Application is dismissed in its entirety pursuant to r 13.13(a) of the Rules.
The applicant also alleges that the sixth respondent contravened s 28B of the SD Act as follows:
(a)In early November 2018 he said to the applicant ([3(b)]):
“ thought to come back to work did you? You had fun with your partner on your day off? Oh don’t fool me, I know what fun you had” and “I was feeling so alone without you. I missed you so much.”;
(b)In or about mid November 2018 the sixth respondent said to the applicant:
“Mario has men’s problems, his penis does not erect and that’s why he has taken off to see doctor to get Viagra”.
and while saying this stuck his middle finger up at the applicant, then stuck his finger out and bent his finger down and laughed ([3(f)]).
The sixth respondent denies the above incidents in their entirety.
To the extent that there are other allegations made about the sixth respondent in the Witness Statement which did not form part of the AHRC complaint, then for the same reasons given at [52] to [54] above, it is impermissible for the applicant to seek to raise them now (and in that manner) in relation to the sixth respondent.
In relation to the matters alleged in [3(b)] of the Amended Application, the applicant’s Witness Statement provides further context. Namely, that she returned from sick leave and the sixth respondent said to her:
(a)“oh don't fool me I know, what fun you had? You left me all alone here by myself, I was on my own”;
(b)“why you do this to me”;
(c)“I had to defend all by myself”;
(d)“I was feeling so alone by myself without you”; and
(e)“I missed you so much”.
Rather than giving rise to an impression that this was sexual conduct or even banter, it seems from the applicant’s own version of events that the sixth respondent was suggesting that she had not in fact been sick, but rather enjoying leisure time. It is clear the applicant wishes to construe these comments (which from a review of [90(a) to (e)] above are clunky non-sequiturs and do not flow as any kind of compressible or cohesive statement) to be “intrusive” and “about her private life” which is how she describes them in her Witness Statement and again in submissions at the hearing of the application in a proceeding.
However, on the applicant’s evidence of what was said, I do not consider that the comments, even if the applicant were able to establish them as having occurred, have a real prospect of satisfying s 28A for the purpose of s 28B of the SD Act, notwithstanding that the applicant subjectively seeks to interpret them that way. They may not have been pleasant comments to make if, in fact, the sixth respondent was seeking to suggest the applicant been taking an improper form of leave and had not been genuinely ill. Again, these comments may have sounded in some other workplace cause of action which the applicant has elected not to pursue. But considered in light of the SD Act, in my view [3(b)] of the Amended Application does not have a reasonable prospect of success and should be dismissed as against the sixth respondent pursuant to r 13.13(a) of the Rules.
In relation to [3(f)] of the Amended Application, subject to my comments about the ambiguity of location relevant to the definition of “workplace” for the purposes of s 28A of the SD Act, in my view there is a sufficient prospect that the allegation, if made out, might give rise to a contravention of s 28B of the SD Act. Accordingly, [3(f)] of the Amended Application should be struck out pursuant to r 16.21(1)(d) of the FCA Rules, again with a limited leave to re-plead which will be addressed by orders which I will make.
Seventh respondent
The seventh respondent, Ming Tran, was (and may still be) employed by the first respondent in the position of salesperson.
The applicant makes allegations against the seventh respondent in [1(b)] of the Amended Application that the seventh respondent contravened ss 9 and 18C of the RD Act on 22 June 2018 by saying the following to the applicant in the heating section of the first respondent’s Store:
…fuck you, greedy Indian woman
Again, in my view this allegation, while very unpleasant, does not have a reasonable prospect of satisfying s 9 of the RD Act and should be dismissed in that regard pursuant to r 13.13 of the Rules.
However, in relation to the same conduct as going towards a potential contravention of s 18C of the RD Act, while the Amended Application makes reference only to where in the Store the incident took place, the applicant’s Witness Statement seems to make tolerably clear that she alleges it took place in front of a customer. So understood, the alleged incident may be said to have taken place otherwise than in private. There is a sufficient allegation in relation to what was said that a reasonable prospect exists that if made out there may be a contravention of s 18C of the RD Act. The applicant may wish to provide a better version of events in any further evidence, however, [1(b)] does not warrant either dismissal or strike out in relation to the allegation concerning s 18C of the RD Act and pertaining to the seventh respondent, and may remain in situ.
Eighth respondent
The eighth respondent, Marian Mirza, was (and may still be) employed by the first respondent in the position of sales person.
The applicant makes allegations against the eighth respondent in [1(a)] of the Amended Application that the eighth respondent contravened ss 9 and 18C of the RD Act in mid-June 2018 by saying to a customer in the fridge section of the Store in the presence of the applicant:
Ash has a problem, she needs to be fixed, fucking Indian bitch.
The eighth respondent denies this incident took place.
To the extent that this allegation is said to constitute a contravention of s 9 of the RD Act, even if made out as having occurred it does not have a reasonable prospect of success of constituting a contravention of s 9 of the RD Act. The act or conduct alleged by [1(a)], while about the applicant and also unpleasant, was not an act involving a distinction, exclusion, restriction or preference based on race. Again it may have sounded in a different cause of action if the applicant sought to so pursue it, but she did not.
To the extent that the same act is said to give rise to a contravention of s 18C of the RD Act, I note firstly that the audience for the alleged comment is said to have been a customer in the Store. It does not appear to be in dispute that for the purposes of this allegation in relation to s 18C of the RD Act the alleged act took place otherwise than in private. However, for the eighth respondent it was submitted (in relation to a number of allegations) that the use of the description “Indian” in derogatory statements which the applicant attributes to them, is that while “Indian” features as an adjective it is not a comment based on race. The eighth respondent says that the alleged interaction was not a comment directed at the applicant because of her race. However, that appears to be a controversy for the Court to determine (on a properly pleaded and final basis) and the allegation does not on its face lack a reasonable prospect of success if made out.
Accordingly, in relation to the incident alleged in [1(a)] of the Amended Application, this paragraph should be dismissed as against the eight respondent pursuant to r 13.13(a) of the Rules insofar as it alleges a contravention of s 9 of the RD Act. However, it may remain in situ to the extent it is cast as being a contravention of s 18C.
Ninth respondent
The ninth respondent, Ken Zhuang, was (and may still be) employed by the first respondent in the position of salesperson.
The applicant makes allegations against the ninth respondent in [3(c)] of the Amended Application pursuant to s 28B of the SD Act, namely that on or about 2 November 2018 while the applicant was sitting “at the finance desk”, the ninth respondent touched the applicant’s breasts as he reached across the applicant to grab the computer mouse that the applicant was using.
The allegation is entirely denied.
The Witness Statement provides further detail in relation to this incident. The ninth respondent is said to have “snatched” the mouse from the applicant and touched her in the process of doing so. The use by the applicant herself of the words “grab” and “snatch” in relation to the movement of the ninth respondent have all the hallmarks of a rapid action which was aimed at the goal of retrieving the computer mouse from the applicant. I am not satisfied that this incident, even on the applicant’s evidence, goes beyond an accidental touch or grazing, if it happened at all. I am of the view that it lacks a reasonable prospect of success in relation to s 28C of the SD Act.
Accordingly, in relation to the incident alleged in [3(c)] of the Amended Application, this paragraph should be dismissed as against the ninth respondent pursuant to r 13.13(a) of the Rules. I repeat my observations at [40] above which apply similarly in respect of the ninth respondent.
I note that the Witness Statement makes additional allegations about the ninth respondent which did not form part of the AHRC complaint. For the same reasons given at [52] to [54] above, it is impermissible for the applicant to seek to raise them now (and in that manner) in relation to the ninth respondent and the Court will not consider them. It follows that the proceedings are dismissed against the ninth respondent.
Tenth respondent
The tenth respondent, Fateen Khan, was (and may still be) employed by the first respondent in the position of salesperson.
The sole allegation made against the tenth respondent by the applicant is that he was present during the incident referred to at [71(c)] above. The tenth respondent denies the interaction occurred.
Paragraph [3(g)] of the Amended Application says that:
Mr Cortes and Mr Khan showed the applicant a picture on the mobile phone
This description can only be an infelicitous use of language by the applicant given it is implausible that two persons undertook this action of displaying a single mobile telephone, together. So much becomes clear from the Witness Statement which alleges that the person who showed the applicant the photograph was the fifth respondent and not the tenth respondent.
Insofar as [3(g)] of the Amended Application pertains to the fifth respondent I have already found that it should be struck out with limited leave to re-plead. However, to the extent that the allegation is made in relation to the tenth respondent and on no version of the applicant’s evidence is it substantiated, then [3(g)] of the Amended Application should be dismissed as against the tenth respondent pursuant to r 13.13(a) of the Rules. I repeat my observations at [40] above which apply similarly in respect of the tenth respondent. It follows that the proceedings are dismissed against the tenth respondent.
Eleventh respondent
The eleventh respondent, Kym Prendergast, was (and may still be) employed by the first respondent in the position of salesperson.
The applicant makes allegations against the eleventh respondent in [1(c)] of the Amended Application that the eleventh respondent contravened ss 9 and 18C of the RD Act on 13 July 2018 by saying the following to the applicant in the microwave section of the first respondent’s Store:
…don’t touch it, you Indian bitch. They are mine you fucking greedy Indian woman.
For context the “it” and “they” referred to in the above allegation are revealed, by the Witness Statement, to be biscuits.
By the Witness Statement the applicant alleges that:
On or about 13 July 2018, an admin staff member offered me a biscuit in the staff room and when I asked her if I was okay to take one, she said yes so I did. Before this, I was already offered one by Tony from warehouse around 9:15am, and when I asked him who the biscuits belonged to, he informed me that it was from an installer who gave it to all Bing Lee staff every year. When I was no longer in the staff room and was standing in the cooking section, Kim came out of the staffroom and repeatedly yelled at me “did you eat that biscuit” in front of a customer. I told her Amy gave it to me to which Kim responded “don't touch it you Indian bitch, they are mine you fucking greedy Indian woman". Kim then walked away, grouping up with Tracey, Martin and Ken and I could hear her telling them about the incident as well as laughing about it.
To the extent this is alleged to be a breach of s 9 of the RD Act, I am again not satisfied, even if made out as having occurred, that it has a reasonable prospect of success of constituting a contravention of s 9 of the RD Act. The act or conduct alleged by [1(c)] of the Amended Application does not appear to involve a distinction, exclusion, restriction or preference based on race. Accordingly, in relation to the eleventh respondent, [1(c)] of the Amended Application should be dismissed as against the eleventh respondent pursuant to r 13.13(a) of the Rules.
In relation to s 18C, the alleged incident appears to have taken place otherwise than in private.
For the eleventh respondent, who denies the interaction entirely, it is said that even if it took place the comment was made in connection with a dispute about biscuits in the staffroom and on the applicant’s own evidence, the eleventh respondent “taking umbrage at the applicant taking a biscuit from the staffroom”. It was again submitted that “Indian” features in an adjectival manner, as do each of the terms “fucking” and “greedy”, but that this does not make the statement based on race.
As with the allegations made against the eight respondent, there does appear to be a controversy for the Court to determine and in my view the allegation does not on its face lack a reasonable prospect of success if made out. For this reason [1(c)] of the Amended Application should be dismissed as against the eleventh respondent pursuant to r 13.13(a) of the Rules insofar as it alleges a contravention of s 9 of the RD Act but may remain as presently pleaded in relation to a contravention of s 18C only.
First respondent
Having addressed the Amended Application in relation to each of the individual respondents, what remains is [2], and [4] to [6] of the Amended Application (inclusive).
As I have not wholly dismissed [1] and [3] of the Amended Application, [2] and [4] still have work to do. However, those paragraphs will require re-drafting to reflect the other changes to the Amended Application. In my view it is not appropriate for [2] and [4] to remain in their present form pending an amendment because subsumed within them are allegations of vicarious liability against the first respondent for matters pleaded which I have summarily dismissed.
For this reason I will also make an order that [2] and [4] of the Amended Application be struck out pursuant to r 16.21(1)(d) of the FCA Rules, with leave to re-plead consistent with the orders pertaining to [1] and [3].
By [5] of the Amended Application, the applicant alleges that the first respondent contravened each of ss 5 and 14 of the SD Act and ss 9 and 15 of the RD Act by failing to act on complaints made to it in relation to various alleged incidents. To the extent that any of the alleged incidents arise from paragraphs which have been dismissed, then they cannot be re-alleged in relation to [5].
However, otherwise the applicant has not expressly pleaded, nor clearly addressed in her evidence precisely to the complaints which are said to have been made and not addressed. As [5] presently stands it is ambiguous and does not have a reasonable prospect of success. It is also not for this Court to have to wade through the applicant’s Witness Statement to seek to speculate upon whether complaints were made and, if so, to support which allegations. However, noting as was done at the outset (and by the Federal Court previously in this matter) that the applicant is an unrepresented person in a human rights matter, I am prepared to give the applicant one further opportunity. Paragraph [5] of the Amended Application will be struck out with leave to re-plead.
The applicant is hereby on notice that in the event that she does not properly particularise the allegations, referable to evidence, there remains a possibility that at the hearing of this matter those paragraphs will be summarily dismissed either on application of the first respondent or of the Court’s own motion.
Paragraph [6] of the Amended Application alleges that the first respondent contravened s 94 of the SD Act and s 27 of the RD Act in that it:
(a)threatened to dismiss;
(b)threatened to prejudice;
(c)intimidated and coerced; and
(d)threatened to subject the applicant to a detriment
because the applicant raised allegations of sexual harassment and sex discrimination and proposed to make a complaint alleging racial discrimination and racial hatred.
In essence, the applicant alleges victimisation by the first respondent in the form of threats which are said to have been made by the first respondent because she raised allegations of sexual harassment and sex discrimination and proposed to make a complaint to the AHRC.
In my view this allegation does not have a reasonable prospect of success. On her own evidence, the applicant resigned of her own volition. The applicant resigned on 25 February 2019 and made the AHRC complaint in May 2019. There is nothing pleaded or in evidence to demonstrate that the applicant ever foreshadowed to the first respondent that she proposed to make a complaint to the AHRC. While this does not preclude that she might have presaged this course in advance, there is no evidence that she did. The applicant expressly alleges a link between the alleged victimisation and the impending threat of a complaint to the AHRC. However, there is nothing to support this and, in my view, [6] of the Amended Application lacks a reasonable prospect of success and should be dismissed pursuant to r 13.13(a) of the Rules.
Summary
The following paragraphs of the Amended Application will be summarily dismissed:
(a)any allegation made pursuant to s 9 of the RD Act in each of [1(a)], [1(b)], [1(c)], [1(d)] and [1(e)];
(b)[1(f)] entirely;
(c)[1(g)] entirely;
(d)[3], with reference to s 28A;
(e)[3(a)] entirely;
(f)[3(b)] entirely;
(g)[3(c)] entirely;
(h)[3(e)] entirely;
(i)[3(g)] in relation to the tenth respondent; and
(j)[6].
Accordingly the following persons are no longer respondents to the proceedings:
(a)Bianca Nursoo, second respondent;
(b)Ramzi Yousif, third respondent;
(c)Ken Zhaung, ninth respondent; and
(d)Fateen Khan, tenth respondent.
The following paragraphs of the Amended Application will be struck out with leave to re-plead. For the purposes of the orders which will be made, the following limitations on re-pleading are to be observed:
(a)[1(d)] and [1(e)] to be properly particularised in respect of s 18C of the RD Act only;
(b)[2] to properly reflect amendments to [1];
(c)[3(d)] to be properly particularised in relation to s 28B;
(d)[3(f)] to be properly particularised in relation to s 28B;
(e)[3(g)] to be properly particularised in relation to s 28B;
(f)[3(h)] to be properly particularised in relation to s 28B;
(g)[4] to properly reflect amendments to [3]; and
(h)[5] to be properly particularised.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 September 2022
SCHEDULE OF PARTIES
SYG 2309 of 2021 Respondents
Fourth Respondent:
MARIO IACONO
Fifth Respondent:
RICHARD CORTES
Sixth Respondent:
CLAUDIO MUSA
Seventh Respondent:
MING TRANG
Eighth Respondent:
MARIAN MIRZA
Ninth Respondent:
KEN ZHUANG
Tenth Respondent:
FATEEN KHAN
Eleventh Respondent:
KYM PRENDERGAST
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