Millar v Kmart Australia Ltd

[2015] FCCA 2678

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLAR v KMART AUSTRALIA LTD [2015] FCCA 2678

Catchwords:
PRACTICE AND PROCEDURE – Application to strike out certain complaints before the Court – alternatively application to enter judgment for respondent in respect of certain pleas – s.46PO(3) of the Australian Human Rights Commission Act1986 (Cth) – application dismissed.

Legislation:  

Australian Human Rights Commission Act 1986 (Cth), s.46PO

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

Applicant: CRAIG MILLAR

Respondent: KMART AUSTRALIA LTD

File Number: BRG 379 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 September 2015

Date of Last Submission: 21 September 2015

Delivered at: Brisbane

Delivered on: 21 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Watson

Solicitors for the Applicant: Susan Moriarty & Associates

Counsel for the Respondent: Mr McKenney

Solicitors for the Respondent: Directly instructed by Christie De Marchi of Kmart Australia Ltd (holder of a Corporate Practising Certificate)

ORDERS

1. The application in a case filed on 1 September 2015 is dismissed.

2. The respondent pay the applicant’s costs of and incidental to the application in a case filed on 1 September 2015 to be agreed between the parties, and failing agreement, to be fixed by the Court according to schedule 1 of the Federal Circuit Court Rules 2001.

3. The applicant has leave to file an amended statement of claim.

4. The applicant file and serve any affidavits of evidence in chief of any witnesses upon which he intends to rely by 4.00 p.m. on 12 October 2015.

5. The respondent file and serve any affidavits of evidence in chief of any witnesses upon which they intend to rely by 4.00 p.m. on 2 November 2015.

6. The applicant file and serve any affidavits in reply by 4.00 p.m. on 16 November 2015.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 379 of 2015

CRAIG MILLAR

Applicant

And

KMART AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

ex tempore

1. By its application in a case filed on 1 September 2015, the respondent, Kmart Australia Limited, seeks to have certain parts of the statement of claim filed in these proceedings by the applicant, Mr Millar, struck out, or, alternatively, summary judgment entered in respect of those aspects of the claim. 

2. The first part of the application deals with the pleas set out in the statement of claim that commence at paragraph 11 and go through to paragraph 17. 

3. But first some context.  Mr Millar claims both when he originally made his complaint to the Australian Human Rights Commission, and in his statement of claim, that he has been a long time employee of Kmart Australia, and that from time to time he has been called on to perform various duties at their stores around south-east Queensland. 

4. He made some very specific complaints in his complaint to the Human Rights Commission about the types of things that he was unable to do by reason of a disability that he had acquired over time, and which has left him in a wheelchair.  Part of his duties required him to access areas that only had staircases.  He needed to go to storerooms and the like.  And he needed access to, and egress from, his place of employment.  So much is clear from the complaints that he made to the Australian Human Rights Commission in his complaint form.  But because he was accessing those areas in a wheelchair, access was difficult, and he describes the difficulties that he had in his complaint. 

5. The complaint to the Australian Human Rights Commission was terminated, pursuant to s.46 PO of the Act.  He had an entitlement to bring these proceedings in this Court by reason of that termination. 

6. As both parties in this case have set out in their very useful written submissions, there is a boundary around the proceedings in this Court.  That boundary is defined by the complaint that was made to the Australian Human Rights Commission.  There are authorities, and I have been taken to them – perhaps the leading one is Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118, but there are others – which set out quite clearly that in proceedings that follow a terminated complaint to the Human Rights Commission, the allegations must more or less be confined to, and conform with, the case that was put to the Human Rights Commission. Proceedings in this court are not an occasion for a complete recast of the complaint that was made to the Commission. There are good policy reasons for that.

7. Here, in respect of paragraphs 11 through to 17 of the statement of claim, the assertion by the respondent is that those matters, raised in those paragraphs, are outside of the boundary properly set around these proceedings by reference to the complaint that was agitated before the Human Rights Commission. 

8. The allegations in paragraph 11 to 17 of the statement of claim centre upon some of the duties that the applicant was required to perform as a store manager.  The relevant pleaded duties were threefold.  The first was opening the store’s entrances and exits.  The second was the closing of the store’s entrances and exits.  And the third was:

   Ensuring that after the stores were closed that the exits and entrances were securely locked and all lights were turned off except for emergency lights.

9. Those duties are set out in paragraph 11 of the statement of claim. Paragraph 12 sets the timeframe for the relevant allegations. It is asserted that from 5 August, 2009 to 4 March, 2014 the respondent failed to make reasonable adjustments for the applicant at the stores so as to enable him to carry out the duties having regard to his disabilities. Paragraph 13 continues the plea by setting out what it was that the applicant was required to do, because the respondent did not make the reasonable adjustments. Paragraph 14 does the same.

10. Paragraph 15 of the statement of claim is an allegation of indirect discrimination over a different timeframe, a timeframe commencing in 2007 and ending in August, 2009.  But subparagraph 15(a), centres on those three duties to which I have earlier referred. 

11. Paragraph 16 does the same work, except that it covers the period of 5 August, 2009 to 14 March, 2014. Paragraph 17 is an alternative plea. But, again, it centres on those three duties that I have outlined.

12. The respondent’s case on this dismissal application is that those three duties to which I have referred – opening stores, closing them, and then ensuring that they are locked after they have closed – was not mentioned in terms by the applicant in his complaint to the Human Rights Commission, and therefore was not subject the proceedings before the Commission.  The respondent argues that the applicant should not be permitted to expand his case in these proceedings and those allegations should be dismissed or judgment entered for the respondent in respect of them.

13. The applicant concedes that his complaint to the Commission did not mention those duties in terms.  But, in my view, it did not have to.  It is right to say, as counsel for the respondent said, that much of the complaint to the Human Rights Commission centres upon some specific matters that the applicant was required to do in the course of his employment with the respondent.  In particular, there is extensive reference in the complaint to the applicant needing to access what he describes as the “top deck” or “top decks” of stockrooms and storerooms.  Because he was in a wheelchair and had limited mobility, he was either unable to access those areas, or, when he did access those areas, it was done in what might only be described as an undignified and difficult manner. 

14. But on its proper construction, in my view, the applicant’s complaint to the Commission is not so limited.  Paragraph 12 of the complaint says this:

    As I have raised in this complaint, the current work environment at Kmart is extremely unforgiving to people who are required to use wheelchairs in their day to day lives.  I have been directed by my superior managers to engage in duties that require the use of staircases, but are not equipped to facilitate [it says assess, but I think it means access] to wheelchair-bound people.  The same managers are aware of my condition and the difficulty it poses when I have to traverse these staircases in my wheelchair, yet they have not investigated or inquired as to what assistance could be given to me to allow an easier time when using those staircases.  As a result of this continued and wilful ignorance to this matter by Kmart management, I am forced to either traverse the staircases by myself or request the assistance of my fellow colleagues, which in turn places me and my colleagues at an extremely high risk of injury. 

    I have made multiple request to Kmart to make accommodations in the workplace, so that my staff or myself do not need to be placed at risk every time I need to go up or down a staircase as part of my duties as store manager.  These requests have been simply ignored or denied, without any investigation or explanation as to why Kmart is unwilling to expend a small amount of resources to ensure the continued safety of its employees. 

15. It goes on, but I will not continue.  Those things, or some of them set out in paragraph 12 of the complaint, resonate with what is pleaded in paragraphs 13 and 14 of the statement of claim.  The applicant pleads in those paragraphs, and in paragraph 12, that he requires the assistance of another – other employees or another employee to help him with his duties.  He has to leave his wheelchair and to crawl across surfaces to perform his duties.  He has to, as set in paragraph 14, request assistance from other staff. 

16. Those matters are all the subject of what is said in paragraph 12 of the complaint.  In paragraph 12 of the complaint he refers generally to his “duties”.  In my view, paragraphs 11 through to 17 are within the boundaries of the complaint that was made to the Human Rights Commission.  They are merely more particular allegations. 

17. Insofar as the application in a case then seeks relief in respect of paragraphs 11 through to 17, and consequential relief in respect of some later paragraphs of the statement of claim, the application is dismissed. 

18. The second aspect of the claim centres upon paragraph 42 and onwards in the statement of claim.  I should say at once that the pleading is a very difficult one and seems to have eschewed the usual rules of pleading rather than embrace them.  But, having said that, I think the case made by the applicant is tolerably clear. 

19. In paragraph 41 of the statement of claim, the applicant alleges that on 4 March, 2014 the respondent informed the applicant by letter that allegations of serious misconduct had been made against him, that he was suspended from his position as store manager immediately, and that the allegations were to be investigated by the respondent.

20. He pleads in paragraph 42 that on or about 31 March, 2014 the respondent, by letter, informed the applicant of a number of allegations of inappropriate behaviour by the applicant towards various members of the respondent’s staff. The letters of 4 and 31 March, the suspension and the investigation were “detriments”, the applicant claims, suffered by him.

21. Leaving aside the difficulty with pleading multiple facts in a single paragraph and running them altogether in sentences that contain more than one allegation, so far so good.  Paragraph 43 then pleads this:

    The respondent subjected the applicant to the detriments [presumably, the detriments referred to in paragraph 42] because the applicant had complained about the physical difficulties he was encountering in performing and attending to the duties of his position as a store manager, and advanced suggestions for reasonable adjustment.

22. The pleading then goes on to develop that argument in paragraphs 44 and 45.  There is a further pleading in paragraph 46 to this effect:

    The applicant claims that his suspension and the initiation of “show cause” disciplinary proceedings, as described above, occurred because the applicant had alleged at law that conduct by various employees employed by the respondent was unlawful by reason of its continuing failure to make reasonable adjustments to the workplace.

23. There are then further pleas and it is all wrapped up in paragraph 51.  That paragraph pleads that by reason of a whole range of matters set out there, that the respondent unlawfully discriminated against the applicant on the grounds of the applicant’s disability, either in the terms and conditions of his employment that the respondent afforded to him or by subjecting the applicant to other detriments as pleaded. 

24. One of the difficulties with this pleading is that it pleads conclusions and uses summary descriptions rather than asserting the facts upon which those conclusions must be drawn.  But, in my view, the pleading is nonetheless good and not liable to be struck out. 

25. The complaint made by the respondent seems to be that, on its face, no reasonable connection can be drawn between the actions of the respondent pleaded in paragraph 42 of the statement of claim and what the applicant claims is unlawful discrimination and victimisation pleaded in paragraph 43.  That is to say, as a matter of fact and law, the Court will not be able to conclude that the actions taken by the respondent as pleaded in paragraph 42 of the statement of claim were taken for the reasons pleaded in paragraph 43 of the statement of claim.

26. And that might be right. Ultimately, the Court might well find that the actions that are said by the applicant here to amount to victimisation under s.42 of the Disability Discrimination Act and which are thereby unlawful discrimination having regard to the definition in s.3 of the Australian Human Rights Commission Act, cannot be made out. But as paragraphs 43 and 46 of the pleading make tolerably clear, the applicant’s case is a different one. He alleges that the actions that were taken against him, the detriments to which he was subjected, were taken against him because he had made complaints about disability discrimination.

27. If he succeeds in establishing that, then his cause of action is made out, and his claim, subject to the other requirements of the Act, might succeed.  It is quintessentially a question of fact – what it was that motivated the decision makers in this case to do what they did in respect of the applicant’s employment.  What motivated those who took the action against the applicant, which seemingly is not in dispute?  That question of fact cannot be decided on pleadings in the summary way in which the respondent seeks to have done on this application.

28. To the extent that the respondents suggest that this is a question of law, it is nothing of the sort.  It is clearly a question of fact to be determined at the end of the day once all of the evidence is in. 

29. I have paid careful attention to ss.42(1) and 42(2) of the Disability Discrimination Act, because the application in a case says that by reason of those provisions of the Act, the applicants claim cannot succeed as a matter of law. But I cannot agree, because it is ultimately a question of fact. It is pleaded by the applicant that the actions about which he complains were taken against him for a particular reason - because of the complaints that he had made. The Court will have to make a finding about that factual matter in due course.

30. In those circumstances, the application in a case, to the extent that it seeks relief in respect of paragraphs 42, 43, 44(b) and (d), 46, 47, 48 and 50 is dismissed. 

31. It goes without saying that paragraph 52 should remain.  There is a complaint made about paragraph 52, and, in particular, the individual called Mr Russo, who is set out in that paragraph.  The first thing to say about that is that no separate relief is sought against any of the individuals named in paragraph 52 of the statement of claim. That plea seems to be a plea which is intended to support earlier pleas in the statement of claim that the applicant had complained to certain people, or that certain people employed by the respondent had given him certain directions, or asked him to do things, or direct him to do things. It is not doubt a plea which is intended to ensure that everybody fully understands that what the applicant alleges he was asked to do, he was asked to do by the respondent, its authorised officers, servants, or agents. It is, in other respects, an inoffensive plea.

32. Issue is also taken with paragraph 54 of the statement of claim, and consequently with respect to the relief sought in paragraph 55(b). The objection is no longer pressed, but in any event, I would strike out neither of those paragraphs.

33. For all of those reasons, the application in a case filed on 1 September 2015 is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 September, 2015.

Associate: 

Date:  1 October 2015