Meshram v Bing Lee Electrics Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784

File number(s): SYG 2309 of 2021
Judgment of: JUDGE GIVEN
Date of judgment: 31 August 2023  
Catchwords:

HUMAN RIGHTS – Alleged racial discrimination – alleged sex discrimination – whether mention of Viagra constitutes conduct of a sexual nature

COSTS – Whether costs application foreclosed by reason of proceedings having been brought in human rights jurisdiction – public interest litigation

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 197, 214

Federal Court Act 1976 (Cth) s 43

Racial Discrimination Act 1975 (Cth) ss 9, 18C, 15, 27

Sex Discrimination Act1984 (Cth) ss 5, 14, 28A, 28B, 94, 106
Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262
Hughes t/as Beesley and Hughes Lawyers v Hill (2020) 277 FCR 511
Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381
Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559

Qantas Airways Ltd v Gama (2008) 167 FCR 537

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229

Sidhu v Raptis [2012] FMCA 338

Tadawan v State of South Australia [2001] FMCA 25

Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403

Division: Division 2 General Federal Law
Number of paragraphs: 346
Date of hearing: 13 to 16 and 20 to 21 March 2023
Place:  Sydney
Solicitor for the Applicant: In person
Counsel for the Respondents: Mr B Rauf
Solicitor 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:

31 AUGUST 2023

THE COURT ORDERS THAT:

1.The Further Amended Application filed with the Court on 28 September 2022, as amended, is dismissed.

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

INTRODUCTION

[2]

PROCEEDINGS IN THIS COURT

[9]

Causes of action

[12]

Burden of proof

[15]

Legislation

[19]

HEARING

[26]

Events leading to hearing

[27]

Final hearing

[31]

EVIDENCE

[43]

Ms Meshram’s notes

[49]

Credit

[58]

Evidence of Sean Ng

[65]

CONTEXTUAL BACKGROUND TO CLAIMS

[72]

Commencement of Ms Meshram’s employment with Bing Lee

[73]

Induction and policies

[77]

Composition of the…

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Details
Case
[2023] FedCFamC2G 784
Decision Date

CaseChat Overview and Summary

The case of Meshram v Bing Lee Electrics Pty Ltd (No 2) involves Ms Meshram, an employee who brought claims against her employer, Bing Lee, alleging racial discrimination and failure to act on complaints. The Federal Circuit and Family Court of Australia presided over the matter. The primary legal issues that the court had to address were whether Bing Lee contravened the Racial Discrimination Act by engaging in discriminatory conduct and whether the company failed to take reasonable steps to address Ms Meshram's complaints.

The court found that Ms Meshram did not establish any conduct that contravened the Racial Discrimination Act. The evidence presented by Ms Meshram was either not included in her initial complaint, pleadings, or earlier filed evidence, or was implausible when examined. Additionally, the court concluded that Bing Lee did not fail to act on Ms Meshram's complaints. The company had encouraged her to formalise her grievances in writing, which is a standard procedure. Furthermore, in some instances, managers had approached Ms Meshram to discuss the incidents she reported.

Based on these findings, the court dismissed Ms Meshram's claims. The court held that there was no racial discrimination by Bing Lee and no failure to act on Ms Meshram's complaints. Consequently, the court ruled that the allegations that Bing Lee failed to act due to Ms Meshram's race or national background were unfounded. The court's decision led to the dismissal of specific parts of Ms Meshram's application, finding that she had not substantiated her claims under the Racial Discrimination Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Court did not pre-emptively impose time limits on Ms Meshram’s cross-examination. She was, however, forewarned that if the nature of the cross-examination was not assisting the Court in relation to the matters which lay for determination, that position may change. Eventually, and upon application by Counsel for the respondents on a number of occasions, it became necessary to curtail[10] Ms Meshram’s cross-examination of each witness, on the basis that the matters being traversed were not of relevance or assistance. In those instances the Court gave Ms Meshram advance notice of a period of time which would still be allowed in relation to the witness in question, so that she could better focus her questioning. The Court was also open to consider time then being extended on application by Ms Meshram if questioning had pivoted to be useful. The Court did not decide lightly to restrict the cross-examination of witnesses by Ms Meshram, but did so only when it became apparent that Ms Meshram had usefully exhausted avenues of questioning. [10] Pursuant to s 197 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)EVIDENCE The following evidence was received by the Court at hearing: (a)for Ms Meshram:(i)a witness statement made by her on 26 November 2020 (and which was later adopted by her in the witness box as being sworn evidence in chief), filed in the Federal Court of Australia (AM Statement); (ii)Affidavit of Ms Meshram sworn on 3 March 2023 (Reply Affidavit); (iii)Exhibit “1A” being a payroll extract for periods 1 January 2018 and 31 December 2019 relating to Ms Meshram; and (iv)Exhibit “2A” being a bundle of screenshots of text messages between Ms Meshram and the fourth respondent, Mr Mario Iacono.(b)for the respondents: (i)Affidavit of Salvador Mario Iacono sworn 25 January 2023 (Iacono Affidavit); (ii)Affidavit of Richard Emilio Cortes sworn 23 January 2023 (Cortes Affidavit); (iii)Affidavit of Claudio Musa sworn 16 January 2023 (Musa Affidavit); (iv)Affidavit of Nghiep Minh Trang sworn 25 January 2023 (Trang Affidavit); (v)Affidavit of Marian Mirza sworn 25 January 2023 (Mirza Affidavit); (vi)Affidavit of Chan Shion (Sean) Ng sworn 24 January 2023 (Ng Affidavit); (vii)Affidavit of Bianca Mylene Nursoo sworn 24 January 2023 (Nursoo Affidavit); (viii)Exhibit “1R” being an email chain between Ms Nursoo and Ms Meshram spanning the dates 29 to 31 July 2018; (ix)Exhibit “2R” being a bundle of original handwritten notes on the obverse of Bing Lee price tickets, top note dated “June 18”; (x)Exhibit “3R” being a bundle of original handwritten notes, top note dated 13 July 2018; (xi)Exhibit “4R” being a bundle of original handwritten notes on obverse of Bing Lee price tickets, top note dated 22 June 2018; and (xii)Exhibit “5R” being an email from the sixth respondent, Mr Claudio Musa to staff at the OG store dated 6 December 2018. As became a pattern throughout the hearing, Ms Meshram appeared to take the view that where the respondents took a particular course, she should too. For example, in the course of identifying the evidence, the respondents initially sought to tender a particular document. Ms Meshram then wanted to tender documents too, albeit she did not have documents to tender and was not able to identify with any particularity what said documents might be, or to which issues they might go. She was simply desirous of tendering a document so as to be on par with the respondents. Ms Meshram made a number of objections to the respondents’ Affidavits, many of which were upheld by the Court. It was explained to Ms Meshram that the effect of this was that the evidence was not before the Court, and that she had been successful in having it excluded.

Decision

Reasons for decision

I reject that evidence for the following reasons: (a)the evidence in this regard was raised for the first time in Ms Meshram’s Reply Affidavit at [5(a)]. It appears neither in the AHRC Complaint, nor any version of the pleading or the AM Statement. (b)when asked in cross-examination about this new allegation, Ms Meshram’s explanation for how it was that she came to know about the existence of the AHRC and the ability to make a complaint to that body, was implausible. In short, Ms Meshram said that she was on a train and was crying when a person, whose name she does not know, but who discernibly worked at Bing Lee because they were in a Bing Lee uniform, approached her and suggested that she should make a complaint to the AHRC. Ms Meshram says she did not ask their name because she came to her stop and had to disembark from the train. Ms Meshram could not otherwise describe or identify the person and had to be pressed to even disclose the gender of the alleged Bing Lee staff member who was providing unsolicited legal advice on the Sydney train network. The Court was not persuaded by this explanation as to the inspiration for Ms Meshram having allegedly told Mr Iacono of her intention to lodge a complaint with the AHRC, and was left with the distinct impression that Ms Meshram was making the train event up while being questioned, in order to explain the recent inclusion of it for the first time in her Reply Affidavit; (c)by reason of the matters set out in the preceding sub-paragraphs, the Court is of the view that if Ms Meshram had in fact told Mr Iacono of her intention, that this evidence would have been included in her AHRC complaint and also in her pleadings and the evidence filed in these proceedings, prior to evidence being filed in March 2023, only 10 days before the hearing. Conclusion Having found there to be: (a)no conduct which contravenes the RD Act; and (b)no failure to act on complaints, even to the extent any were raised; there is consequentially no substance remaining to ground the allegation that Bing Lee failed to act because of Ms Meshram’s race or national background. Therefore [5(m)] of the Further Amended Application must be dismissed. The evidence demonstrates that when, in response to complaints which Ms Meshram did make verbally, she was encouraged to put any grievance she wished in writing to Bing Lee, she did not do so. I am also satisfied on the evidence that it cannot be said that no response was taken to her complaints. In fact, in some instances managers approached her to discuss incidents.[149] Managers suggesting (or in some instances encouraging) that a complaint be properly particularised and made in writing in accordance with usual company procedures is not “no response”. Accordingly, [5(k)] of the Further Amended Application is not established. [149] See for example [231] above On balance, Ms Meshram has wholly failed to establish that Bing Lee contravened either ss 9 or 15 of the RD Act. Sex DiscriminationAlleged failure to take reasonable steps

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.