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Meshram v Bing Lee Electrics Pty Ltd

Meshram v Bing Lee Electrics Pty Ltd

Case [2022] FedCFamC2G 718 1 September 2022

Unconscionable Conduct

Employment & Labour Law

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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…

Grounds of appeal

[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.

Continue reading Meshram v Bing Lee Electrics Pty Ltd

Details

AGLC: Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718
Case: [2022] FedCFamC2G 718
Decision Date

CaseChat Overview and Summary

In Meshram v Bing Lee Electrics Pty Ltd, the Federal Circuit and Family Court of Australia dismissed a number of claims and struck out others in a case involving allegations of racial and sexual discrimination, as well as claims of victimisation. The applicant, Aishwarya Meshram, brought the case against Bing Lee Electrics Pty Ltd and 15 of its employees in their individual capacities. Meshram alleged that she experienced racial and sexual discrimination and victimisation during her employment as a salesperson at Bing Lee's Bankstown and Old Guildford stores between 2018 and 2019.

The court found that several claims were not supported by the evidence and had no reasonable prospect of success. For example, the court dismissed claims that certain comments made by individual respondents were discriminatory or harassing, as they did not involve a distinction, exclusion, restriction, or preference based on race or gender. The court also found that certain allegations did not occur in a public place, as required by the Racial Discrimination Act. Consequently, the court dismissed these claims and removed the corresponding respondents from the case.

The court struck out other claims, giving Meshram an opportunity to re-plead them with more specific details and evidence. For instance, the court found that some allegations lacked sufficient information about the location and circumstances, and therefore, they were ambiguous and did not have a reasonable prospect of success. The court allowed Meshram to re-plead these claims, with specific instructions on what information was needed to improve the prospects of success.

In summary, the Federal Circuit and Family Court of Australia dismissed some claims and struck out others in Meshram v Bing Lee Electrics Pty Ltd. The court found that several claims lacked evidence or did not meet the legal requirements for racial and sexual discrimination or victimisation. However, the court allowed Meshram an opportunity to re-plead some of the struck-out claims with more specific details and evidence.

Orders