Nandutu v University of Sydney
[2019] FCCA 2754
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NANDUTU v UNIVERSITY OF SYDNEY & ANOR | [2019] FCCA 2754 |
| Catchwords: HUMAN RIGHTS – Application for leave to file proceedings – Sexual Harassment – litigation in other jurisdictions – lengthy delay in lodgement of complaint – application for leave dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth) |
| Cases cited: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 James v WorkPower Inc [2018] FCA 2083 |
| Applicant: | SUSAN KANA NANDUTU |
| First Respondent: | UNIVERSITY OF SYDNEY |
| Second Respondent: | AB |
| File Number: | SYG 1080 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing date: | 6 August 2019 |
| Date of Last Submission: | 6 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2019 |
REPRESENTATION
The Applicant appearing on her own behalf
| Counsel for the Respondent: | Ms Gaven |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Pursuant to s.46PO(3A) of Australian Human Rights Commission Act 1986, the application for leave is dismissed.
The Application filed 3 May 2019 is otherwise dismissed.
The Applicant pay the Respondent’s costs of and incidental to the application as agreed, and if not agreed, such costs are be taxed in accordance with the Federal Court Rules 2011 and paid by the Applicant.
Pursuant to s.88G(1)(d) of the Federal Circuit Court Act 1999 (Cth) the Second Respondent is not to be identified and forthwith be referred to as “AB”.
THE COURT NOTES THAT:
(A)The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1080 of 2019
| SUSAN KANA NANDUTU |
Applicant
And
| UNIVERSITY OF SYDNEY |
First Respondent
| AB |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 13 August 2018 the Applicant, Susan Kana Nandutu, filed an originating application in this Court asking for compensation for damages and loss caused to the Applicant by the Respondents’ actions against her, and a written apology.
The grounds of the application were harassment, particularised as repeated sexual harassment by the Second Respondent against the Applicant, and that caused, what is noted in paragraph 1.1 as being, a breakdown in her supervisory relationship which ended up leading to her termination of candidature for a PhD.
Though the Applicant alleged sexual harassment, there is a very big problem with alleging that as the grounds for the making of the orders that she sought. That is because the only way in which a matter comes to this Court, or the Federal Court, for allegations relating to any form of discrimination is pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth).
That section allows for an application to the Court if a complaint has been terminated by the President of the Commission. The section says that such application must be made within 60 days after the issue of a notice of termination.
But more importantly, in s.3A, the application must not be made unless the Court concerned grants leave to make the application; or the application was terminated under s.46PH(1)(h), that being the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or Federal Circuit Court; or the complaint was terminated under s.46PH(1B)(b), that is, that there is no reasonable prospect of the matter being settled by conciliation.
There had been no complaint that had been terminated by the AHRC. There had not even been a complaint made. In either late December 2018 or early January 2019, the Applicant did make a complaint to the Australian Human Rights Commission.
That complaint was terminated on 1 March 2019. It was terminated pursuant to s.46PF(1)(b) and s.46PH(1)(b). Therefore, before the Applicant could bring an action in this Court, based on those complaints, she would need leave pursuant to s.46PO(3A) .
The applicant filed this application on 6 May 2019. That is, she started a totally different cause of action rather than one within the one that she had filed on 13 August 2018.
She filed this application on 6 May 2019, which is more than the 60 days after termination. But that only becomes an issue if it is that I give leave for the matter to proceed as of right.
The question before me today is should this leave be given. To judge whether that leave should be given, one has to look at what the case is for the Applicant.
The Applicant is a person who was born in Uganda, and she is a self-represented litigant. She said that she started studying with the intention of completing her PhD at the Sydney Medical School at the University of Sydney as a doctor of philosophy. Her supervisor for the PhD program was the Second Respondent. She said that she enrolled in the program in semester 2, 2010. She claimed generally that the Second Respondent subjected her to sexual harassment from October 2010 to October 2011.
The sexual harassment, she said, offended her, created fear in her and humiliated her. It caused a breakdown, in February 2012, of the supervisory relationship between herself and the Second Respondent, and that ended up, through a number of other things, causing her candidature for the PhD program to be terminated.
In giving particulars, the Applicant said that she was invited to dinner on 2 October 2010 at the home of the Second Respondent with about seven other people. The email was sent on 18 September 2010 to four other email addresses, and the note simply read from the Second Respondent:
Hi all, Trish and I would like y’all to come around for dinner on night of Saturday, 2 October, 7 pm. Hope you can make it.
And it says “see attached”, but I do not have what the attachment was.
It would seem that the Applicant did reply in the affirmative, and on Sunday, 19 September, the Second Respondent sent this to the Applicant by email:
If you are coming by train… [directions omitted]…If you wanted to stay the night rather than get the train home late, we have three spare bedrooms now the kids have left home.
The Applicant said that she responded to that email and declined the invitation to stay overnight at the home, though I have not been given the email in which she said that she declined that invitation. She said that at the dinner there were seven people, including herself. She said, with the exception of a piece of music by another guest, the Second Respondent played African music throughout the time that she was at the home and she was uncomfortable about it because she was the only African person there, but she didn’t feel comfortable enough to say anything about it.
She said that after dinner, the Second Respondent invited her to go to his backyard with him, and the two of them went out into the backyard. Whilst in the backyard, the Second Respondent repeated his invitation to her to stay overnight at the house. She said that he put his hand on her and said to her that he would stay behind for a long time washing dishes, and that once his wife had her drink, she would sleep through the night.
The Applicant said that she told the Second Respondent that such was unacceptable to her, and she said that she wanted to go back into the house, and they did so. She said at that point she realised that this was not a genuine invitation to just dinner, and that she felt offended and humiliated, and the invitation in the email “to stay overnight” she now saw as being sinister rather than innocent.
She said that she thanked the wife for dinner afterwards, and then she said that she thanked them both for dinner. It would seem she must have sent an email, because the Second Respondent the next day had sent an email which simply said, “It was lovely seeing you, Susan, a special mind,” and that seemed to be all that was in the email.
The Applicant says that, on 15 October 2010, that they had a supervisory meeting in his office, and that he said to her that if information about his invitation to her to dinner in his home and to sleep in his house ever got out, then he would personally ensure that she was kicked out of the Sydney Medical School.
She said that she noted that she could see that he was serious and she knew that it was a threat, and this created fear in her. She, however, did say that she had the courage to tell him that such an action would be unlawful.
She said that she went to his office after supervisory meetings on a number of occasions, and during those times he often played music on his computer and smiled at her and asked her to translate music. During the course of this hearing, the Applicant explained that it was African music that the Second Respondent was listening to and there would be some words that were said during the course of the music and she recognised the languages and that the Second Respondent asked her to translate what was said in the music.
The Applicant said to this Court during her submissions that, even though she did recognise what some of the things that were being said, she told the Second Respondent that she didn’t know. In her affidavit she said that she told him that she could not translate or that “she does not understand music”.
She said that on a number of occasions when she was there at his office, he would tell her that he would be at specified places at different days or where there would be good music, and invited her to also go to those events. She said that she was uncomfortable with those as she again put somewhat of a sinister connotation on that.
The last matter that she particularises as sexual harassment was a meeting that she had on 11 October 2011. The Second Respondent asked her what she was doing after the meeting and she said that she was going to the store. The Second Respondent said that he would go with her to the store. She said that as they walked, the Second Respondent wanted to show her “the other end of PhD supervision” and as he said that, he put his hand on her and told her to stay close. She said that she moved his hand away and said to him “no”. She said that she felt humiliated.
They continued walking along to the store. She said that he suddenly took her hand and kissed her hand. She said that she felt humiliated and again said to him “no”. She said they continued walking and he made the comment about “special time”. She said that when she returned from overseas, that he, the Second Respondent, would have some free time around the end of the year and the first week of January and that he again touched her and her response was “no”. She said that she felt offended and humiliated.
Once they got to the store, which she told the Court today was Officeworks, the Second Respondent had insisted on paying for an item that the Applicant was buying from the store they had walked to. She said that she told him that she had money to pay for the item and took out money to pay, but he insisted on paying for that item.
She said that on 1 January 2012, the Second Respondent sent her an email asking her to meet with him, though it is unclear whether that was to meet with him for a supervisory purpose.
She said that she replied to that email but not until 6 January and she said that, after that, he had told people that she had not replied to that email. He then refused to give her feedback. She said that she made requests to the university for a second supervisor and that that was not granted. She said that she applied for suspension of her PhD course so that she could go back to Uganda to care for her mother was sick. She said that she did actually leave Australia and go to Uganda in April 2012.
She said that whilst she was there, she still sent material to the Second Respondent to get feedback as part of her PhD course but he gave her no feedback. She said she subsequently learned that, in August 2012, the Second Respondent had written to other persons in the university to attempt to have the candidature of the Applicant terminated. She said that she was without a supervisor for, realistically, all of 2012 and all of 2013 and most of 2014. She said that the university knew about that fact and yet still allowed her to continue with her PhD course.
She said that on 6 August 2014, the Second Respodnent completed a form. That form was headed Changes to Supervisory Team Form. It was a form that moved the supervision of the Applicant’s PhD progress from the Second Respondent to Professor Robert Cumming. It was signed by the Second Respondent, by Professor Cumming and also by another Professor, Christopher Jordens.
It was all dated 6 August 2014. On the face of it there does not seem to be anything improper about that form.
The Applicant was adamant in her submissions to me that this was a false form because it then purports that the Second Respondent was her supervisor as at August 2014 when in reality she had no supervisor from 2012 to 2014. She said that the Second Respondent was then able to characterise her during that period from 2012 to 2014, even though he was not a supervisor because that form then made him out to be the supervisor.
She said that she realised then that the Second Respondent, through his ability to say that he was her supervisor, was then able to have her candidature terminated. She said because she had her candidature terminated, she developed quite a deal of health problems and she says that all of what has occurred has really stemmed from the sexual harassment perpetrated by the Second Respondent.
The Applicant said to the Court that, in effect, the justice of the situation demands that leave under s.46PO(3A) be given. There is very little by way of authority as to how the Court should approach the question of leave.
As I had already noted, s.46PO (3A) talks about the application not being made unless the complaint was terminated because of the President seeing that there was some issue of public interest or that the matter could not be conciliated or that the leave be given.
In James v WorkPower Inc [2018] FCA 2083, Mortimer J was faced with the question of whether she should give leave under the same subsection. At paragraphs 34 to 38 the Court has said this.
34. Part IIB of the AHRC Act contains a series of prescriptive requirements for complaints to the commission that also inform the construction and operation of section 46PO(3A). Section 46P prescribes what a complaint must contain, and who made lodge it. Section 46P(1A) imposes a requirement that it must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination. This provision was introduced at the time as section 46PO(3A). It informs the powers in section 46PH(1) to terminate a complaint and also the mandatory obligation to terminate a complaint in section 46PH(1B) (1C).
The exceptions in section 46PO(3A) inform the construction and operation of the leave requirement. The exception relating to complaints of public importance, section 46PH(1)(h) is intended to give effect to the commission president’s or her delegate’s state of satisfaction that a complaint bears that character and to recognise that no further filter is appropriate in such circumstances. The exception relating to the obligation to terminate a complaint if there was no reasonable prospect of the matter being settled by conciliation, which is section 46PH(1B)(b), again recognises and gives effect to the satisfaction of the commission president or her delegate that the complaint is of this nature. In relation to termination for this reason it is important to understand that the president is only likely to form a state of satisfaction to this effect if:
(1) The complaint is not trivial, vexatious, misconceived or lacking in substance so that it must be terminated pursuant to section 46PH(1B)(a); and
(2) The complaint is not of a kind that falls within section 46PH(1C) which may be another way of reaching in substance the same kind of conclusion as that reached under section 46PH(1B)(a); and
(3) None of the discretionary grounds for termination of a complaint under section 46PH(1) are identified by the commission president as the appropriate basis.
36. In other words, if the president has identified the obligation in section 46PH(1B)(b) as triggered because of her or his satisfaction that the complaint cannot be settled by conciliation, then it would appear implicit in that decision that the commission president is also satisfied that the complaint is reasonably arguable, but that the view is reached that the matter cannot be successfully conciliated.
37. I am satisfied that the text, context and purpose of the leave requirement in section 46PO(3A) suggests that it is appropriate for the court to consider in determining whether to grant leave, whether the claims made by an applicant are reasonably arguable and are, at the least, not fanciful. This is consistent with the language used in section 46P(1A). I do not consider, read in that context, that section 46PO(3A) sets the bar particularly high. The purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantially greater level.
38. There may be a range of other permissible considerations including:
(1) The circumstances of the parties, how important the subject matter of the complaint is to both the applicant and any respondent and to their respective circumstances;
(2) The nature of the allegations made including whether, for example, they involve allegations of continuing discrimination or how serious the discrimination is alleged to be;
(3) How thoroughly the Commission has dealt with the merits of the complaint; for example, maybe the Commission’s termination reasons thoroughly answer the alleged merits of the complaint and make it clear the complaint is not reasonably arguable;
(4) whether an applicant has delayed in complaining about the alleged discrimination, and if so, whether there are any explanations for that delay;
(5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7) whether the allegations raise issues of public importance or of general application; the express power given to the president in section 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8) other factors that are often considered in leave applications, such as prejudice to a party.
The Respondents have argued that there are four aspects to this matter that would militate against the granting of leave.
The first of these is the delay. The Respondent says that there has been no explanation as to why there has been such a delay. The Respondent submits that the question really needs to be answered as to why no complaint was made sooner.
The Applicant pointed to one of her many affidavits at paragraph 22. She said in that that there had been repeated actions taken against her to gag her, to prevent matters on sexual harassment and victimisation from being aired.
One example is noted in that affidavit. She says on Tuesday, 10 March 2015 at 1 pm at the University of Sydney in the Jane Russell building in room 516, she was rudely, strongly and brusquely gagged and prevented from giving information to the University of Sydney on sexual harassment and victimisation that she was subjected to by the Second Respondent. In effect, as she said to me, she was shouted down.
After that complaint that she said she was not allowed to verbalise in March 2015, she says that that then made her make a complaint to the Australian Human Rights Commission (“the AHRC”) in 2015. And then when that did not lead anywhere, she filed an application in the Supreme Court of New South Wales in October 2015.
It is instructive to observe what can be seen in the documentation. In the reasons given by the AHRC for dismissing the complaint that the Applicant made in December 2018 or January 2019, the Commission notes that the Applicant had made complaints earlier. I will read from the decision, at page 3 of the decision.
I note that you say you made complaints against the University of Sydney to this Commission at earlier points, including 2015, 2016. However, on 29 September 2015, 23 March 2016 and 18 May 2016, the Commission wrote to you advising that it had not accepted these matters as complaints for inquiry as you had provided insufficient particulars about the nature of your claims. For example, on 29 September 2015, the Commission wrote to you in response to your email regarding the University of Sydney and the Sydney Medical School. At that time, the Commission summarised your concerns as they were understood and advised you of the following:
While you have raised concerns regarding the apparent lack of supervision/assistance provided to you during your candidature and resultant termination of it, you do not appear to have provided any details of any specific acts or practices by individuals or organisations that could arguably constitute unlawful discrimination under the federal anti-discrimination laws administered by this Commission.
It is also noted that your 2015 correspondence did not name [the Second Respondent] as an individual respondent, nor did it contain the same allegations of sexual harassment against him. In addition, I note that in response to further correspondence from you in March and May 2016, in the Commission’s letter to you on 18 May 2016, the Commission again advised that you had not provided sufficient particulars as to why you felt you had been discriminated against because of your sex and/or race.
You were also advised that it was unclear how the sexual harassment provisions under the Sex Discrimination Act could be arguably applicable to the matters you raise in your correspondence at that time in relation to [the Second Respondent]. The Commission further advised you that if you wished to proceed with the matter, you needed to provide further information about the alleged conduct. I understand that you did not provide any further information at that time.
One then looks at the Supreme Court action. In delivering an interlocutory decision, Chief Judge Hoeben at Common Law, said this as to the factual background from paragraph 3. Paragraph 3:
In August 2010, the plaintiff, who is a resident of Uganda, was enrolled in a Doctor of Philosophy course in the Faculty of Medicine of the defendant for semester 2 (the PhD Program). In 2012 the plaintiff submitted an application to the Faculty of Medicine to suspend her PhD candidature for semester 2 in that year. The reason was that she was the primary carer of her mother in Uganda and that her mother was critically ill. The Faculty of Medicine refused the plaintiff’s application and terminated her participation in the PhD Program.
On 5 November 2012 the plaintiff appealed to the Student Appeals Body (SAB). The plaintiff was successful in her appeal and was reinstated to the PhD Program.
On 10 November 2014 the Faculty of Medicine gave the plaintiff written notice requiring her to show cause why she should be permitted to continue her candidature in the PhD Program. The plaintiff responded to that notice on 8 December 2014. On 16 December 2014 the Faculty of Medicine terminated the plaintiff’s candidature in the PhD Program.
On 29 January 2015 the plaintiff again appealed to the SAB against the termination of her candidature in the PhD Program. On 10 March 2015 the SAB heard the appeal and on 25 June 2015 dismissed the appeal. On 30 June 2015 the defendant sent the plaintiff a letter informing her of the SAB decision and the reasons for the decision.
On 1 October 2015 the plaintiff commenced proceedings in this Court by way of Summons, seeking unspecified orders in relation to the decision of the SAB to uphold the Faculty of Medicine’s decision to terminate her candidature in the PhD Program. That Summons was stood over for the plaintiff to seek legal assistance.
Those two documents paint a different picture to that that had been given by the Applicant to this Court. Certainly when she says that she was shouted down on 10 March 2015, that was in the context of her appealing the decision of the university to terminate her PhD candidature. There is nothing that was put in the complaint to the AHRC that really specified any of the sexual harassment alleged by the Second Respondent. Neither in the action that was made regarding the decision by the Student Appeals Board in the Supreme Court was there any claim as what the Second Respondent is alleged to have done.
It does not seem to me that the Applicant had done everything she could to bring these complaints to light, certainly, by the end of 2015. The Applicant has today said that she was ill and the material before me includes a number of medical reports. However, none of those go to answering the question as to why it was that the Applicant had waited so long to make the complaint.
The sexual harassment has been particularised as having occurred in 2010 and 2011. It began with the dinner invitation and what happened at the dinner party in the backyard, and it ended with the walk to Officeworks, where a hand was placed on the Applicant a number of times and her hand was kissed. There has been no explanation as to why there was no complaint in 2010 or 2011.
The Applicant says that she tried to raise it in 2015. However, there does not seem to be any independent corroboration of that. In fact, the documentation seems to speak against it.
At the AHRC, there were, it would seem, three requests by the AHRC for more information and for some particularity as to what it is that the Applicant was saying was actually done and by whom it was done. The Applicant did not respond to that request by the AHRC, and as I have already said, there is no mention in the Supreme Court material about that aspect.
It seems to me that the delay is very much a live issue in this matter that has not been properly addressed or answered by the Applicant.
The second issue that the Respondent points to is that the Applicant has instituted other legal proceedings. As I have already mentioned, the Applicant issued proceedings in the Supreme Court in 2015 which, on my reading of what has been said by Hoeben CJ, revolved around a judicial review of the decision by the SAB to terminate the candidature.
The Applicant commenced a second proceeding in the Supreme Court on 11 December 2017. It would seem, on the evidence before me, that these were defamation proceedings against the university.
On 21 June 2018, the Applicant commenced proceedings against the university and four individuals in the Federal Court. Those proceedings included commencing a proceeding under the Sex Discrimination Act 1984 (Cth) in that proceeding, but it does not seem it was against the Second Respondent. Robertson J of the Federal Court transferred those proceedings from the Federal Court to the Supreme Court because they, in effect, involved the same factual matrix as the matters that were already before the Supreme Court.
And it seems on 6 February 2019, the Applicant commenced another proceeding in the Supreme Court by way of summons, but I do not have any further details on that.
The Respondent argues that the Applicant has made a forensic choice to pursue other litigation. The Applicant has said, in submissions to me today, that she cannot pursue a sexual harassment claim in any of the other litigation because it is a jurisdiction that is exclusive to the Federal Courts. However, as I pointed out to her, this is still part of the same tale.
What the Applicant is asking for is damages because of the fact that she was unable to complete her PhD and her candidature was terminated. The origin of that is the sexual harassment allegations.
The claim that she makes in the Supreme Court and the matter that was transferred from the Federal Court also seek damages because of the termination of her candidature, notwithstanding that there are other aspects to that termination other than the sexual harassment aspects.
The defamation action stems out of statements that were made by people that, during the course of discussions, ended up in the termination of her PhD candidature.
It seems to me that the Applicant has in effect divided up the different aspects of what it is that she has claimed so that if she is unsuccessful in one Court, she can simply go ahead with another Court on, realistically, the exact same facts. It seems to me that such is an abuse of process and that there is much merit in this aspect of the Respondent’s submissions.
The third aspect, which the Respondent points to, is that there is prejudice to the Respondent, both the university and the Second Respondent. In going through the evidence before me, it would seem that it was not until the Applicant filed an affidavit in August 2018 that there was any particularity as to what it is that the Second Respondent is alleged to have done. That is, some almost eight years after this dinner party and some seven years after the walk to the Officeworks department store.
There is a reason why the Australian Human Rights Commission wants complaints of discrimination made within six to 12 months of the discrimination actually having occurred. As the Commission has said in this particular matter:
You made your complaint to this commission on 6 January 2019 having submitted a previous complaint form on 31 December 2018. Your complaint relates to events which you allege to have placed between 2010 to 2014. This means there has been a delay of between five to nine years in the allegations being brought forward to this commission. With the passage of time, key people may no longer be available to provide information or may no longer accurately recall events and other potentially useful information to support or refute the allegations – may have been lost or destroyed, therefore I am concerned about the impact of this very significant delay on the ability to conduct a fair inquiry into the complaint.
It is also seems to me that whilst the Applicant may have honestly believed that the conduct of the Second Respondent was indeed sexual harassment, it may well be that the Second Respondent may not have seen it that way and that he would have some trouble being able to recollect exactly what happened on the night of the dinner party or on a walk to Officeworks. To ask him to, in effect, give an explanation or his side of the story for an event that occurred so long ago may be very difficult for him and, of course, occasions him with a deal of prejudice.
Whilst such a matter is by no means conclusive of any application for leave, it is something that I do need to take into consideration.
The last matter that the Respondent relies on is the futility of the matter. The Respondent says that the case lacks merit. Section 28A defines sexual harassment as this:
For the purposes of this division, a person sexual harasses another person (a person harassed) if (a) the person makes an unwelcome sexual advance or an unwelcome request for sexual favours to the person harassed or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
In this matter one does have to take into account that the Applicant is a person from another country and may very well have a different threshold for offence, humiliation or intimidation than others. One must, as it were, try and objectively look at what has happened through the eyes of someone in the position of the Applicant.
Having said that, if what the Applicant says is correct, there may be a case of sexual harassment that has been proved.
However, if one looks at it, it is the sort of case where the Applicant did make no complaint about this conduct, it would seem, for many years, even though the opportunity presented itself. Even if one generally says that she meant to make the complaint in 2015 but could not get the right words to make the complaint, it still did not occur until after it is that she had her candidature terminated.
There is nothing that is contemporaneous with what has allegedly happened that would corroborate what it is that the Applicant has said. The emails that have been sent certainly are not in that category.
It seems to me that there is very much a vagueness as to what it is that has been alleged to have occurred. As I say, there were only two incidents that really could amount to sexual harassment; that is, an invitation to stay the night after the wife goes to sleep as being a sexual advance, and a kissing of the hand and telling the Applicant that they may have some special time, also as being an advance. Both advances were rebuffed, it would seem, and they were some 12 months apart in time.
The Applicant relied on Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, as an authority to talk about the damage that was done to her but, in this case which differed from Richardson (Supra), there is no medical evidence at all that links any of the physical ailments or any psychological ailments that the Applicant has endured to the sexual harassment that has been alleged. As the Applicant candidly admitted, she did not tell any of the health professionals other than a psychologist, she says, of the sexual harassment.
It seems to me that this, as a case of sexual harassment, has not a great deal actually going for it. So when one comes to look at all of the matters identified by the Respondent, there is merit in the submissions as a whole, notwithstanding that some of the aspects are not as strong (or are considerably weaker) than others.
I have had regard to the appropriate matters that had been identified by Mortimer J in the James v WorkPower (supra) authority.
It seems to me that this is a matter where I ought not grant the leave. There are too many problems with the matter for me to be convinced that, as it were, the prohibition against allowing such a complaint should be lifted.
Whilst Mortimer J talks about this “not being a very high bar”, it is a bar nonetheless, and, in my view, the Applicant has fallen below that bar. I therefore dismiss the application for leave pursuant to s.46PO(3A) and otherwise then dismiss the application that is SYG1080/2019.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 23 October 2019
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