Picos v Servcorp Limited

Case [2014] FCA 922

FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited [2014] FCA 922

Citation: Picos v Servcorp Limited [2014] FCA 922
Parties: CONNIE LOUISE PICOS v SERVCORP LIMITED
File number: NSD 766 of 2014
Judge: GLEESON J
Date of judgment: 26 August 2014
Catchwords: HUMAN RIGHTS – discrimination – sexual harassment – where applicant unable to appear at hearing – claim for injunctive and monetary relief – where AHRC has not given notice of termination of the complaint  
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PE, 46PH, 46PO, s 46PP,
Sexual Discrimination Act 1984 (Cth) s 28G
Federal Court of Australia Act 1976 (Cth) s 19,
Federal Court Rules 2011 (Cth) r 5.05, 5.22, 5.23, 17.01
Cases cited: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641
Date of hearing: 6 August 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 46
Counsel for the Respondent: Mr M E Orlov
Solicitor for the Respondent: HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 766 of 2014
BETWEEN:

CONNIE LOUISE PICOS
Applicant
AND:

SERVCORP LIMITED
Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

26 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The claim for an interim injunction requiring the respondent to pay the applicant $500,000 be dismissed.

2.The claim for the sum of $200 million be dismissed.

3.The application be adjourned to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions.

THE COURT DIRECTS THAT:

4.The Registry send a copy of this judgment, the affidavit of Mr Moufarrige dated 1 August 2014, and the three exhibits received into evidence on 6 August 2014 to the applicant at:

a)the email address nominated on the amended originating application; and

b)the most recent contact address for the applicant in the Court file.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 766 of 2014
BETWEEN:

CONNIE LOUISE PICOS
Applicant
AND:

SERVCORP LIMITED
Respondent

JUDGE:

GLEESON J

DATE:

26 AUGUST 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This matter was listed before me as duty judge on 6 August 2014 for hearing of the applicant’s application for interlocutory relief sought by an originating application under the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) filed on 25 July 2014.

  2. The applicant alleges that she was the victim of sexual harassment at a serviced office she licenced in premises at Level 1, The Realm, 18 National Circuit, Barton in the Australian Capital Territory (“Barton office”). According to her affidavit dated 25 July 2014, on 11 July 2014 the applicant was excluded from the office. The applicant seeks:

    a.an interim injunction requiring the respondent immediately to give the…

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AGLC
Picos v Servcorp Limited [2014] FCA 922
Case
[2014] FCA 922
Decision Date

CaseChat Overview and Summary

In Picos v Servcorp Limited, the applicant sought injunctive and monetary relief against Servcorp Limited, alleging sexual harassment and discrimination. The applicant claimed that she was sexually harassed by the floor manager's father, the floor manager, and male Servcorp clients, and that Servcorp failed to take appropriate action when she complained. The applicant also claimed that Servcorp changed the lock on her office door and called the police when she attempted to enter. Servcorp argued that the applicant's contractual relationship was with Enideb, not Servcorp, and that Enideb was the proper defendant in the proceedings.

The court had to decide whether the applicant's claims against Servcorp were valid and whether the court should grant the injunctive and monetary relief sought. The court found that the applicant's contract was with Enideb, not Servcorp, and that there was no evidence that Servcorp was responsible for the conduct of the floor manager or the clients. The court also found that the claim for damages was not appropriate relief at the interim stage and could only be considered after a final hearing. The court dismissed the claim for injunctive and monetary relief against Servcorp, but adjourned the proceedings to a later date to allow the applicant to provide further evidence and arguments.

The court ordered that the claim for an interim injunction requiring Servcorp to pay the applicant $500,000 be dismissed, as well as the claim for the sum of $200 million. The application was adjourned to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions. The court also directed that a copy of the judgment, the affidavit of Mr Moufarrige dated 1 August 2014, and the three exhibits received into evidence on 6 August 2014 be sent to the applicant at her email address and most recent contact address in the Court file.

Orders

Orders of the court

1. The claim for an interim injunction requiring the respondent to pay the applicant $500,000 be dismissed.

2. The claim for the sum of $200 million be dismissed.

3. The application be adjourned to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions.

THE COURT DIRECTS THAT:

4. The Registry send a copy of this judgment, the affidavit of Mr Moufarrige dated 1 August 2014, and the three exhibits received into evidence on 6 August 2014 to the applicant at:

a) the email address nominated on the amended originating application; and

b) the most recent contact address for the applicant in the Court file.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is also based on the following complaints:a.That the applicant “purchased a virtual office from Servcorp Ltd. [The applicant] then upgraded to a full-time, fixed office in Canberra for an initial period of 12 months. In the first week [the applicant] was sexually harassed by the floor manager's elderly dad, who accused [the applicant] of prostitution. Then the floor manager accused [the applicant] of prostitution. The floor manager, Josie Webb, said "I will never forgive myself (for allowing her to have an office here). There were male Servcorp clients waiting outside of [the applicant’s] office door harassing [the applicant] on a daily basis. Servcorp male clients were indicating to their genitals. [The applicant] complained to Servcorp. Servcorp responded that each person is responsible for their self. On 11 July 2014, Servcorp changed the lock on [the applicant’s] office door. [the applicant] attempted to enter my office. Servcorp called the Australian Federal Police”; andb.That, in July 2014, the respondent’s clients said “do not allow her to earn a cent until she gives a blow job”.Respondent’s evidence The affidavit of Mr Moufarrige states relevantly:a.He is the Chief Executive Officer and a director of the respondent;b.He believes that the applicant has brought her proceedings against the wrong party because:1.The applicant’s contractual relationship was with Enideb pursuant to a written service agreement dated 21 May 2014;2.Enideb invoiced the applicant for services provided to the applicant by Enideb in connection with the provision of office space;3.Enideb has informed the ACT Magistrates Court that it is the proper defendant to claims made by the applicant in the ACT Magistrates Court and consented to an order naming it as the defendant in those proceedings.4.The respondent is not a shareholder in Enideb and has no financial interest in Enideb. Annexed to Mr Moufarrige’s affidavit is a copy of an affidavit made by the applicant on 14 July 2014 in proceedings in the ACT Magistrates Court. Annexed to the applicant’s 14 July 2014 affidavit is a document which the applicant refers to as a commercial lease for the Barton office. The document is entitled Servcorp Service Agreement. The document says relevantly:This Service Agreement is made between Servcorp (1), the Client (2a) and the Guarantor (2b) below. Underneath, on the left hand side of the document are the following details:1 Servcorp OfficeCity: CanberraServcorp: BartonWeb address: Level 1 The Realm, 18 National Cct BartonABN: 67 008 618 077 An ASIC & Business Names Organisational Search of Enideb obtained on 21 July 2014 (“Enideb ASIC search”) shows that Enideb’s ABN matches the ABN on the Service Agreement. A Current and Historical Business Name Extract for the business name “Servcorp (Canberra)” shows that the business name is owned by Enideb. The business name “Servcorp (Canberra)” does not appear on the Service Agreement. The Service Agreement identifies the bank account into which payments are to be made under the agreement as an account in the name of Enideb.

Decision

Reasons for decision

I will dismiss the claim for the second interim relief sought.Conclusion The claims for monetary relief, both by way of interim injunction and pursuant to s 46PO of the AHRC Act should be dismissed. As to the balance of the application, comprising the interim injunction for access to the Barton premises, I will adjourn the proceedings to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions. Having regard to the applicant’s facsimile to the Court stating that, as at 8 August 2014, she did not have access to her email, I will direct the Registry to provide a copy of this judgment together with the evidence tendered by the respondent on 6 August 2014 both to her email address and to the most recent address for the applicant on the Court file.

Ratio Decidendi

Legal Principle Established

Mr Moufarrige also gave evidence that the respondent does not have and never has had any right, entitlement or power to lease, sublease, possess or grant access to the Barton premises. In support of this evidence, he annexed to his affidavit:a.A title search for Vol 1980 Folio 44 which he said was the original title for the property located at 18 National Circuit Barton. The title search records a sublease to Melvernic Pty Ltd of Area T1 on SL Plan 6435.b.A copy of the registered sublease which identified the subject land as Area T1 on Subleasing Plan 6435;c.An ASIC & Business Names Organisational Search of Melvernic Pty Ltd obtained on 21 July 2014 which shows that the directors of that company are Nicholas Moufarrige and Melissa Miller, and that the current issued capital of the company comprises four ordinary shares of which three are owned non-beneficially by Kejm Pty Ltd and 1 is owned non-beneficially by Babex Pty Ltd. Consideration In my opinion, the evidence firmly supports a conclusion that the contract by which the applicant was or is entitled to access to a serviced office at the Barton premises is between the applicant and Enideb. That evidence includes an affidavit made by the applicant herself, which identifies the contract document. It also includes correspondence from solicitors acting for Enideb. The applicant complains about the conduct of:a.The father of the floor manager at the Barton premises;b.The floor manager at the Barton premises;c.Clients of Servcorp at the Barton premises;d.“Servcorp” in responding to a complaint by the applicant;e.“Servcorp” in changing the lock on the applicant’s office door. As to at least the last of these complaints, correspondence from Sneddon Hall & Gallop supports a conclusion that it was Enideb that changed the lock on the applicant’s office door. That correspondence also supports an inference that Enideb, as operator of the Barton premises, may be responsible for the conduct of the floor manager and, perhaps, for the conduct of clients of Enideb who were at the Barton premises. Although Mr Moufarrige’s affidavit states that the respondent does not have and has never had any connection with the Barton premises, Mr Orlov acknowledged that one of the directors of Enideb is a relative of Mr Moufarrige. On the limited information available, there is likely to be some connection between the respondent and Enideb because Enideb is using the trading name “Servcorp (Canberra)”. I am not satisfied from the evidence currently available that the respondent is unable to procure access to the Barton premises for the applicant, if that is appropriate to be ordered. In those circumstances, and having regard to the fact that the applicant’s inability to appear in court today is not of her own choosing, I am not prepared to dismiss the proceedings insofar as they concern the first interim relief sought. That aspect of the applicant’s claim should be adjourned. As to the second interim relief sought, that relief cannot satisfy either of the limbs of s 46PP(1). It is a claim for damages which is appropriate relief, if at all, only after a final hearing.