Picos v Servcorp Limited

Case [2015] FCA 344

FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited [2015] FCA 344

Citation: Picos v Servcorp Limited [2015] FCA 344
Parties: CONNIE LOUISE PICOS v SERVCORP LIMITED, MELVERNIC PTY LTD, ENIDEB PTY LIMITED, HWL EBSWORTH LAWYERS, SNEDDEN, HALL & GALLOP, EMILY SHOEMARK, DENNIS MARTIN and MAGISTRATE BERNADETTE BOSS
File number: NSD 1179 of 2014
Judge: PERRY J
Date of judgment: 15 April 2015
Catchwords:

HUMAN RIGHTS – where applications for summary dismissal of claim as against second to eighth respondents –where no complaint made to, or terminated by, the Australian Human Rights Commission as against the second to eighth respondents - whether statutory preconditions for the Court to entertain claim for damages for sexual harassment and unlawful discrimination contrary to ss 28G and 28H of the Sex Discrimination Act 1984 (Cth) satisfied – where liability of certain respondents alleged in reliance on s 105 of the Sex Discrimination Act 1984 (Cth) by reason of those respondents aiding unlawful act - where process prescribed by the Australian Human Rights Commission Act 1986 (Cth) is an exclusive regime for remedying contraventions of (relevantly) the Sex Discrimination Act 1984 (Cth) – whether amendments to include claims for interim injunction under s 46PP can “cure” the lack of jurisdiction – where proceedings dismissed for lack of jurisdiction

PRACTICE AND PROCEDURE – where damages sought against judicial officer - where judicial immunity from suit under s 17I, Magistrates Court Act 1930 (ACT)

PRACTICE AND PROCEDURE – where application for primary judge to disqualify herself for alleged bias or apprehended bias based on conduct of directions hearing in other proceedings - where allegation of prejudgment – where judge acted for intervener in unrelated proceedings before judicial appointment – where application is made for leave to lead evidence on the disqualification application – where caution is required before acceding to an application to lead evidence on a disqualification application - where application for filing further evidence refused – where disqualification refused on the basis that a fair-minded lay observer would not apprehend bias and no basis for inferring bias
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PD, 46PF, 46PH, 46PP, 45PO
Federal Court of Australia Act 1976 (Cth) ss 20, 31A
Federal Court Rules 2011 (Cth) r 5.22, 5.23, 26.01, 26.12, 9.12
Judiciary Act 1903 (Cth) s 40
Magistrates Court Act 1930 (ACT) s 17I
Sex Discrimination Act 1984 (Cth) ss 28G, 28H, 94, 105, 106
Cases cited: Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker [1979] 2 NSWLR 740
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services  Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Bropho v Western Australia [2004] FCA 1209
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Forrester v White

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Details
AGLC
Picos v Servcorp Limited [2015] FCA 344
Case
[2015] FCA 344
Decision Date

CaseChat Overview and Summary

In Picos v Servcorp Limited, the Federal Court considered a series of claims brought by Ms. Picos against various respondents, including individuals and entities such as Servcorp Limited and several judicial officers. The primary disputes centred around allegations of sexual harassment and unlawful discrimination, as well as claims for interim injunctions and damages. Additionally, Ms. Picos sought the disqualification of Justice Perry on the grounds of apprehended bias and filed various interlocutory applications throughout the proceedings.

The legal issues before the court encompassed several significant matters. Firstly, the court had to determine whether the statutory preconditions for bringing a claim for damages for sexual harassment and unlawful discrimination under the Sex Discrimination Act 1984 (Cth) were satisfied, particularly given that no complaint had been made to or terminated by the Australian Human Rights Commission. Secondly, the court needed to ascertain whether the process prescribed by the Australian Human Rights Commission Act 1986 (Cth) was an exclusive regime for remedying contraventions of the Sex Discrimination Act 1984 (Cth). Thirdly, the court examined whether the amendments to include claims for interim injunctions could "cure" the lack of jurisdiction. Finally, the court addressed whether Ms. Picos' allegations of bias against Justice Perry were substantiated.

The court ruled that the statutory preconditions for the claim were not met, as the process prescribed by the Australian Human Rights Commission Act 1986 (Cth) was deemed exclusive for remedying contraventions of the Sex Discrimination Act 1984 (Cth). Consequently, the court lacked jurisdiction to entertain the claim for damages and dismissed the proceedings against the second to eighth respondents. The interlocutory applications filed by Ms. Picos were also dismissed for lack of jurisdiction. Furthermore, the application for Justice Perry to disqualify herself was rejected, as the court found no basis for inferring bias. Finally, the court decided to afford both parties an opportunity to present submissions on the issue of costs, with specific limitations on the length and timing of these submissions.

Orders

Orders of the court

1. The interlocutory application filed 26 February 2015 for leave to lead further evidence on the disqualification application by Ms Picos is dismissed.

2. The interlocutory application filed 9 February 2015 seeking orders that Perry J be disqualified is dismissed.

3. The proceedings as against the second to eighth respondents inclusive are dismissed, including the interlocutory applications filed by Ms Picos on 28 November 2014, 5 December 2014, 29 January 2015 and 2 February 2015.

4. There is no order as to costs as between Ms Picos, the eighth respondent and the Attorney-General for the ACT (intervening).

5. On or before 4.00 pm on Wednesday, 22 April 2015 the second to seventh respondents have leave to file and serve submissions as to costs, which submissions are not to exceed 3 pages.

6. On or before 4.00 pm on Wednesday, 22 April 2015 the applicant has leave to file and serve submissions as to costs, which submissions are not to exceed 3 pages.

7. On or before 4.00 pm on Friday 24 April 2015, the second to seventh respondents have leave to file any submissions in reply, which submissions are not to exceed 2 pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Finally, the mere fact that I appeared as counsel for the Attorney-General for the ACT in separate and unrelated proceedings has no logical connection with my capacity as a judge to determine these proceedings fairly and impartially. As the Attorney-General for the ACT submits, “[a] fair-minded lay observer would be aware that counsel practising in constitutional and administrative law would act for government from time to time and that a previous association as counsel would not lead a judge to decide the case other than on its legal and factual merits, particularly where the law and facts bear no relationship to the previous matter in which the judge acted as counsel.” Thus, it has long been accepted that a prior relationship between a former legal adviser and a client does not by itself disqualify the former adviser from sitting in proceedings where the former client is a party: Re Polites; ex parte Hoyts Corporation Pty Limited [1991] HCA 25; (1991) 173 CLR 78 at 87–88. It is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise: Bienstein at [33]. 2.3 Ms Picos’ application to file further evidence in support of the application for disqualification The application for disqualification does not become any stronger when regard is had to the nature of the evidence which the applicant seeks to file in support of that application. By the submissions filed on 5 March 2015 in support of her application to file further evidence, Ms Picos makes a number of scandalous allegations against Justices Yates and Gleeson, the President of the AHRC and the Mental Health Review Tribunal. None of those allegations raise any issue of actual or apprehended bias on my part in determining these proceedings. Ms Picos also submits that I suggested in Picos v Seven West Media & Ors (NSD 741 of 2014) that “the Applicant withdraw her proceeding [NSD 741/2014] while the Applicant was subject to detention, torture and drugging. Her Honour will be called to respond to a serious claim for torture in an international forum of repute.” The orders in question were made on 8 August 2014 following a mention the previous day at which the respondents appeared. However, Ms Picos had sent a facsimile to the Court dated 5 August 2014 advising that she was in hospital. In the circumstances, orders were made on 8 August 2014 standing the matter over to 13 November 2014 for directions, giving the parties liberty to apply on three days’ notice, providing that any further adjournment application should be supported by affidavit evidence, and affording Ms Picos an opportunity to file a notice of discontinuance if she intended to discontinue her application, together with any written submissions that she may wish to put against the default position under FCR r 26.12(7) as to costs. These orders were merely procedural and facilitative, and there is no proper basis for permitting the leading of further evidence in relation to the point.

Decision

Reasons for decision

Finally, on 2 February 2015, Ms Picos filed at an interlocutory application seeking what was described as urgent declaration that the Interim Protection Orders made by the ACT Magistrates Court in favour of Enideb, Snedden Hall & Gallop and HWL Ebsworth constituted victimisation under s 94 of the SD Act, and that certain of the respondents, staff of the ACT Magistrates Court, the Attorney-General for the ACT, and other persons be referred to the Australian Federal Police for victimisation. Again, without jurisdiction over the proceedings, the orders cannot be made. In any event, the Court has no power to make such orders. 6. CONCLUSION For these reasons, the application for leave to lead further evidence on the disqualification application by Ms Picos is dismissed, as is Ms Picos’ application for disqualification. The proceedings are dismissed against the second to eighth respondents inclusive for want of jurisdiction, including the interlocutory applications filed by Ms Picos on 28 November 2014, 5 December 2014, 29 January 2015 and 2 February 2015. While the discretion to award costs under s 43 of the FCA Act is wide, the ordinary rule is that costs follow the event: Hughes v Western Australian Cricket Assn Inc (1986) ATPR 40-478 at 48,136 (Toohey J). It is my preliminary view that the ordinary rule should apply here with the result that Ms Picos would be liable for the costs of the second to seventh respondents. However, Ms Picos has specifically asked to be heard on the question of costs and I consider that it is appropriate to afford her that opportunity, subject to the following caveat. While the eighth respondent’s submitting appearance indicated a desire to be heard on the issue of costs, given the nature of the appearance, plainly no award as to costs in favour of the eighth would be appropriate, nor any order against the eighth respondent. I interpret this to be a submitting appearance save as to costs. In the circumstances, I have made an order that there be no order as to costs as with respect to the eighth respondent or the Attorney-General for the ACT intervening who has indicated that he does not seek costs.

Ratio Decidendi

Legal Principle Established

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