O'Brien v Crouch
[2007] FMCA 1976
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'BRIEN v CROUCH & ANOR | [2007] FMCA 1976 |
| PRACTICE AND PROCEDURE – Summary dismissal – no reasonable prospect of prosecuting proceedings. HUMAN RIGHTS – Proceedings against party not a respondent to HREOC complaint – application dismissed. |
| Federal Magistrates Act 1999, s.17A Federal Magistrates Court Rules2001, r.13.10 Human Rights and Equal Opportunity Commission Act 1986, ss.46PE, 46PH, 46PO Trade Practices Act 1974, s.52 Sex Discrimination Act 1984 Age Discrimination Act 2004, ss.14, 15 |
| Applicant: | KERRY O'BRIEN |
| First Respondent: | MICHAEL CROUCH |
| Second Respondent: | PAUL NEILON |
| File number: | BRG 761 of 2007 |
| Judgment of: | Jarrett FM |
| Hearing date: | 14 November 2007 |
| Date of last submission: | 14 November 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 14 November 2007 |
REPRESENTATION
| The Applicant appearing on her own behalf |
| Counsel for the First & Second Respondents: | Mr Drysdale |
ORDERS
In the application in general form:
That the applicant file and serve an amended application setting out the precise terms of the relief she is seeking and the grounds upon which she relies for that relief no later than 4.00pm on 28 November, 2007;
That in the event no amended application is filed as aforesaid the application filed 5 September, 2007 stand dismissed.
In the application in Form 167:
That the Form 167 application filed 5 September 2007 be dismissed.
Costs:
That the applicant pay the respondents’ costs of and incidental to the Form 167 application filed on 5 September 2007 fixed in the sum of $3,511.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 761 of 2007
| KERRY O'BRIEN |
Applicant
And
| MICHAEL CROUCH AND PAUL NEILON |
Respondents
REASONS FOR JUDGMENT
ex tempore
Section 17A of the Federal Magistrates Act1999 provides:
17A Summary judgment
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of the Federal Magistrates Court Rules 2001:
13.10 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.
There are two applications before me commenced on 5 September, 2007 by the applicant, Ms O'Brien. One of them is in the general form prescribed for use when commencing applications, the other is in form 167 prescribed by the Federal Court Rules (which rules apply in this Court for the purposes of commencing an application under the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOC Act”) alleging unlawful discrimination.
In the first application Ms O’Brien sues Mr Crouch as the first respondent and Mr Neilon as the second respondent. Against both, she seeks orders requiring them to pay compensation for damages suffered because of misrepresentation and wilful default. The second application is an application under the HREOC Act alleging unlawful discrimination by them against her.
The proceedings this morning are an application by the respondents, Mr Crouch and Mr Neilon, for summary dismissal of both of the applications to which I have just referred pursuant to the provisions of the Federal Magistrates Court Act and Rules.
I will deal with the first application in general form first. It alleges against the two personal respondents an order requiring payment of compensation for damages suffered because of misrepresentation and wilful default. The misrepresentation is alleged to have been made in a newspaper advertisement advertising a telemarketing position. The allegation is that the nature and extent of the employment in practice differed from what was advertised.
Ms O'Brien alleges that the job was significantly different to that advertised and that she was discriminated against publicly by her employer. She alleges that she was demeaned in her communications with the company, and those acting for the company. She alleges that she was the subject of gossip, false accusations and criticisms, and ultimately, was unfairly dismissed from employment by the employer company.
Misrepresentation, of course, can take a number of forms, and as a matter of law, can be compensable in a number of ways. Generally speaking, fraudulent or negligent misrepresentation may entitle an applicant to damages for loss suffered because of the misrepresentation. Innocent misrepresentation may entitle the applicant to rescind a contract entered into on the strength of the misrepresentation.
Misrepresentation is also relevant to claims that s.52 of the Trade Practices Act 1974 has been breached. That section prohibits a corporation from engaging in conduct which is misleading or deceptive or likely to mislead or deceive, and ordinarily some form of misrepresentation is at the heart of an applicant’s claim in such a case.
It is difficult to understand the nature of Ms O'Brien’s case insofar as it rests on misrepresentation. It might be the case that the advertisement in the newspaper did carry misleading and deceptive representations about the nature of the employment, but the precise allegation is not clear from either the application itself nor any of the material that was filed in support of it.
What is even less clear is why it is the two named respondents might be responsible for that conduct. Of course, natural persons can be liable for breaches of the Trade Practices Act, but it is necessary in such cases to establish that the personal respondent was a person who aided, abetted, counselled, or procured, or was otherwise knowingly concerned in the relevant breach (for the purposes of s. of the Act). Alternatively, it might be that it is said that the person is personally responsible for a breach under the Act by reason of s.6 thereof. But the applicant’s case does not appear to rest on these areas of liability.
The second claim dealt with in the first application is “wilful default”, and in that respect it is alleged that the second respondent, Mr Neilon, and the first respondent, Mr Crouch, were guilty of “wilful default” concerning the applicant's termination inquiry. It is alleged that they were guilty of wilful default because:
a)there was no compliance with the requirements of the employer company’s code of conduct;
b)no copy of the employer company’s code of conduct was given out to new staff members; and accordingly
c)Ms O'Brien was unaware of the rights that she might have had under that code of conduct.
That claim raises a number of issues, not the least of which is the status of the company’s code of conduct. Assuming for the minute that such a code existed, and that it prescribed a procedure for dealing with termination of employment, the issue is whether the code creates an enforceable right in the employee such that a breach of the code will sound in compensation or damages.
Perhaps to put it in a slightly different way, does the company code of conduct constitute a term of the contract of employment between the employer and the employee, and if breached, does a breach of that contract give rise to an entitlement for damages? The basis upon which the Court might reach that conclusion is not articulated in any way in the application or the material filed in support of it.
This Court is a Court of statutory jurisdiction. It is a Commonwealth court and it can only deal with matters in respect of which the Parliament has invested it with jurisdiction. This Court has jurisdiction under certain aspects of the Trade Practices Act. It has jurisdiction under certain aspects of the Workplace Relations Act. It has no general jurisdiction as might a court of a State. It has an associated jurisdiction (s.18 of the FMA).
In my view the proceedings as they presently stand are fatally flawed in respect of both respondents. The applicant has no reasonable prospect of successfully prosecuting the proceedings as they are presently framed. It is unclear whether the proceedings raise a justiciable claim that is within the jurisdiction of this Court, or whether the applicant is relying on a claim which is outside the jurisdiction of this Court, or whether it is both. The proceedings as they presently stand, and insofar as they constitute some form of pleading, need to be struck out. But as is usual in cases where pleadings are struck out, the applicant ought be given the opportunity to re-plead so as to make it clear what it is that she is seeking, and how it is this Court might give it to her.
In respect of the two-paged general application filed on 5 September, 2007, the applicant has leave to file and serve an amended application which sets out in precise terms the relief that she seeks and the grounds upon which she seeks that relief no later than 4 pm on 28 November 2007, and in the absence of that document being filed and served on that date, the application filed on 5 September, 2007 will stand dismissed.
I turn then to the Form 167. As counsel for the respondents’ points out, the jurisdiction that the Court is asked to exercise in that claim is a statutory jurisdiction that arises from the HREOC Act. Section 46PO makes it clear that proceedings can be commenced in this Court or the Federal Court once a complaint to the Commission has been terminated by the President under ss.46PE or 46PH of that Act.
But the proceedings to be commenced in this Court or the Federal Court can only be commenced against a respondent to the complaint before the Commission. Mr Crouch was not a respondent to the complaint before the Commission. There is no entitlement to sue him in this Court under the HREOC Act. The claim against him must be dismissed. There will be, therefore, judgment for Mr Crouch against the applicant in the form 167 application.
Mr Neilon is the second respondent in that application and he was a respondent to the proceedings before the Commission. It is necessary, therefore, to determine whether he makes out his claim that these proceedings ought to be dismissed summarily.
The claims against him in the Form 167 are supported by some lengthy statements by the applicant. They are not sworn, and do not really take the form of evidence, but they articulate her case in the way in which she wishes to do so. What she sets out in those documents is consistent with what she said to me in submissions about her case.
It is important to note that Mr Neilon is being sued in these proceedings personally. The employer company is not a party to these proceedings and it is not suggested that the company is liable for Mr Neilon's actions vicariously. Nor, as I read the material and apprehend the applicant's submissions, is it alleged that Mr Neilon is vicariously liable for the actions of any other person in the employ of the employer company.
The applicant brings her case of discrimination on two bases. One is age discrimination, and the other is a breach of the Sex Discrimination Act1984, that claim arising out of her marital status.
In terms of age discrimination it is alleged that there were acts of direct discrimination and indirect discrimination. Before I pass to consider those in detail, it is helpful to remind one's self of what must be established to prove a claim of age-based direct discrimination. That is set out in s.14 of the Age Discrimination Act 2004:
14 Discrimination on the ground of age—direct discrimination
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.
Section 15 of the Age Discrimination Act 2004 defines indirect discrimination:
15 Discrimination on the ground of age—indirect discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.
(2) For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
In this case the allegations against Mr Neilon seem to be that he told the applicant, when she was being terminated from her employment, that it was not her achievements that were in question - and by that I mean her life achievements, because in submissions she made the point that her life achievements were something that seemed to attract the attention of the employer - but that it was not those that were in question but that it was that she was rude, presumably to the employer's customers, or potential customers.
She says that she asked for concrete events which demonstrated the alleged rudeness, but that those examples were never supplied. She says, clearly, that it is her claim that direct discrimination was involved because Mr Neilon, who made the decision about her employment, ignored her reasonable requests for an explanation of her dismissal on the grounds of rudeness. She complains that he did not follow the company code of conduct at all in checking out the gossip and false accusation that was around, apparently being spread by another younger person and which may have been the basis of his decision to terminate her employment.
The second matter alleged against Mr Neilon is that Mr Neilon, having the final say about the termination of her employment, did not conduct “any proper inquiry with regard to her interests as an employee diligently working for an honest stable income for results and in line with the company's policies”. She complains that she did not receive, as I have already said, the company code of conduct, and lays the blame for that at the feet of Mr Crouch and Mr Neilon. She says that Mr Neilon had no genuine interest in having the gossip about her resolved.
In my view, none of the matters that are alleged against Mr Neilon can amount to discrimination on the basis of age. It might be that Ms O'Brien was discriminated against; it might be that she was treated differently to other people; it might be that she was not given the company code of conduct. For the purposes of these proceedings, I assume all of those things are true.
What the material does not establish, and it seems to me what cannot be inferred from the allegations, is that those discriminatory acts occurred because of Ms O'Brien's age. Nor can it be shown, it seems to me, that the imposition of certain conditions on her employment, for example, the condition that she follow a script when talking to customers, has the effect of disadvantaging persons of the same age as she.
In my view, there are no reasonable prospects of Ms O'Brien establishing either direct or indirect age discrimination by Mr Neilon against her. The proceedings against him in that respect must be dismissed.
The second aspect of the application deals with discrimination on the basis of marital status. She says - and I accept - that it is the case that Ms O’Brien is a middle-aged woman, unmarried and without children. She says those facts drew attention to her in this organisation and she was treated differently because of it. But therein lies the difficulty. Ms O’Brien’s case relies upon inference and there is nothing in the material that would permit one to draw the necessary inference that her status was the basis of any discrimination against her. There is no allegation of any direct evidence of discrimination on the grounds of her status – it is an inference which she has drawn herself in the circumstances described in her material. In my view, that material even if accepted completely is insufficient permit the drawing of an inference that her treatment by Mr Neilon was because of her status, and so in my view, that application ought also be dismissed.
Accordingly, the Form 167 filed on 5 September, 2007 must be dismissed, and I so dismiss it.
RECORDED : NOT TRANSCRIBED
Ordinarily, costs follow the event. That is to say, the party who was unsuccessful in proceedings pays the costs of the successful party. There are some exceptions to that, but the exceptions are rare, and generally fall out of the conduct of the parties to the litigation.
In this case, the applicant who was unsuccessful in this mornings proceedings and the HREOC application says that the respondents’ conduct is such that it should disentitle the successful respondents to their costs.
Mr Crouch ought never have been subjected to these proceedings; he was never a respondent to the complaint before HREOC - for whatever reason - and so ought not to have been a party to these proceedings.
Mr Neilon was a party to the HREOC proceedings, and may or may not - it is unclear - have had a part to play in the provision of information by the employer to HREOC in the course of that complaint. Ms OBrien complains that Mr Neilon did not cooperate with HREOC nor did he or the employer provide information that answered her concerns. For that reason, amongst others, his conduct means that he should not have his costs.
The powers given to the Commission under the HREOC Act permit it to have respondents to complaints comply with requests for information, and so I can be reasonably comfortable, I think, with the notion that the information provided by the respondents and the employer to HREOC in the course of HREOC’s investigation was probably sufficient, at least for HREOC's purposes, although it may have been insufficient for the applicant's purposes.
It follows, it seems to me, that although complaint is made about the conduct of the employer and Mr Neilon, those complaints fall short of conduct which would otherwise disentitle Mr Neilon from his costs of the proceedings.
ORDER DELIVERED
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Deputy Associate: E Crutchfield
Date: 17 December 2007
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