Picos v Servcorp Limited (No 2)

Case [2015] FCA 343

FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited (No 2) [2015] FCA 343

Citation: Picos v Servcorp Limited (No 2) [2015] FCA 343
Parties: CONNIE LOUISE PICOS v SERVCORP LIMITED ABN 97 089 222 506
File number: NSD 766 of 2014
Judge: PERRY J
Date of judgment: 15 April 2015
Catchwords:

HUMAN RIGHTS – where respondent seeks summary dismissal of balance of the proceedings on the grounds of lack of jurisdiction – whether statutory preconditions for the Court to entertain a claim of unlawful discrimination under the Sex Discrimination Act 1984 (Cth) satisfied – 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) – where interim injunctive relief under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) is not available once a complaint is terminated - whether interim relief under s 46PO is available in the alternative

PRACTICE AND PROCEDURE – where no power to declare affidavit false – where no power to disqualify a fellow judge

Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PD, 46PF, 46PH, 46PO, 46PP
Federal Court Rules 2011 (Cth) r 1.32, 5.22, 5.23
Sex Discrimination Act 1984 (Cth) s 28G
Cases cited: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Picos v Australian Federal Police [2015] FCA 118
Picos v Servcorp Limited [2014] FCA 922
Date of hearing: 5 February 2015
Date of last submissions: 17 March 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 24
Counsel for the Applicant: The Applicant did not appear
Counsel for the Respondent: Mr M 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 ABN 97 089 222 506
Respondent

JUDGE:

PERRY J

DATE OF ORDER:

15 APRIL 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The interlocutory application filed by Ms Picos on 19 November 2014 is dismissed with costs. 

2.The proceedings are dismissed with costs.

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 ABN 97 089 222 506
Respondent

JUDGE:

PERRY J

DATE:

15 APRIL 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1.               INTRODUCTION

  1. By proceedings instituted on 25 July 2014, Ms Picos sought damages and interim relief against Servcorp Limited (Servcorp) under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for alleged sexual harassment and unlawful discrimination.   She alleged that she had been the victim of sexual harassment at a serviced office leased by her in Barton in the Australian Capital Territory (the Barton Premises) in contravention of s 28G of the Sex Discrimination Act 1984 (Cth) (the SD Act).

  2. On 26…

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Details
AGLC
Picos v Servcorp Limited (No 2) [2015] FCA 343
Case
[2015] FCA 343
Decision Date

CaseChat Overview and Summary

In Picos v Servcorp Limited (No 2), the applicant, Ms Picos, sought an interlocutory injunction to restrain the respondent, Servcorp Limited, from carrying out an alleged unlawful act. The court was required to determine whether it had jurisdiction to hear the matter and if the statutory preconditions for a claim of unlawful discrimination under the Sex Discrimination Act 1984 (Cth) were satisfied. The court also considered whether interim injunctive relief was available under the Australian Human Rights Commission Act 1986 (Cth) once a complaint was terminated. The court ruled that it did not have jurisdiction to hear the matter as the statutory preconditions for the claim were not satisfied, and 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). Additionally, the court held that interim injunctive relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) was not available in the alternative. The interlocutory application filed by Ms Picos on 19 November 2014 was dismissed with costs, and the proceedings were dismissed for lack of jurisdiction with costs. The court found that Ms Picos had not been given a proper opportunity to be heard as she had chosen to leave the courtroom before the hearing of the respondent's interlocutory application. However, the court proceeded with the hearing in her absence as she had been aware of the application and its listing, and the respondent was ready to argue the matter.

Orders

Orders of the court

1. The interlocutory application filed by Ms Picos on 19 November 2014 is dismissed with costs.

2. The proceedings are dismissed with costs.

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

Full text does not contain this section.

Decision

Reasons for decision

Finally, in her submissions filed on 23 January 2015, Ms Picos submits that Servcorp is in default under FCR r 5.22(d). That rule provides that a party is in default for the purposes of r 5.23(2) if (relevantly) the party fails to prosecute or defend the proceeding with due diligence. In turn, FCR r 5.23(2) provides that if a respondent is in default, an applicant may apply to the court for, among other things, an order giving judgment against the respondent for damages to be assessed or any other order. However, quite apart from the fact that the alleged default is not identified and no evidence of any default by the respondent is relied upon, the submission assumes the existence of a jurisdiction to grant relief which for the reasons I have already given does not exist. FCR r 1.32, on which Ms Picos also relies (see at [4] above), can take the matter no further for the same reason.3. CONCLUSION The interlocutory application filed by Ms Picos on 19 November 2014 must be dismissed with costs. The proceedings must be dismissed for lack of jurisdiction with costs.

Ratio Decidendi

Legal Principle Established

For the reasons set out below, the interlocutory application filed by Ms Picos must be dismissed, and the proceedings dismissed for want of jurisdiction.2. CONSIDERATION2.1 Has the applicant had an opportunity to be heard? In a second set of submissions filed by Ms Picos on 17 March 2015, Ms Picos submits that she “…has not been heard or given a proper opportunity to be heard in full”. While the submission is not further developed, it would seem that Ms Picos is referring to the fact that the application for summary dismissal was heard in her absence on 5 February 2015. That occurred in the following circumstances. (a)Six matters initiated by Ms Picos were listed before me on 5 February 2015, including one for mention, one for directions and four for hearing of interlocutory applications. (b)At the conclusion of the directions hearing in one of Ms Picos’ other matters, Ms Picos decided that she would not remain, and packed up her documents and left the courtroom. Before she took that course, I urged her to remain and avail herself of the opportunity to appear and respond to the interlocutory applications listed before me. She declined to do so. After Ms Picos departed, I adjourned the list for a short time in order to give Ms Picos the opportunity to reconsider her position and return to the courtroom. (c)Following a 10 minute adjournment, I resumed the Court and the other Servcorp proceedings NSD1179/2014 were called on. I asked the court officer to call the matters outside the courtroom, which she did. When the current proceedings were called on, I also asked the court officer to call the matter outside the Court three times, which she did. Upon there being no appearance by Ms Picos, I decided to proceed with the hearing of the respondent’s interlocutory application. In deciding to proceed to hear the application in the applicant’s absence, I took into account that Ms Picos had been aware that the application for summary dismissal of her application would be listed on 5 February 2015 since the directions hearing held on 12 December 2014. She was also aware of the issues, having among other things been served with the respondent’s submissions in advance of the hearing, and had filed her evidence and submissions. It was her choice not to remain for the hearing despite it being clear from my comments to her that the other matters would still proceed. I also took into account that Ms Picos did not seek to have the matter adjourned before she decided to leave the courtroom and that the respondent was ready to argue the matter with counsel in attendance. Furthermore, if Servcorp was correct in its jurisdictional objection, then the balance of the proceeding must be dismissed and it was better for that to occur sooner rather than later with consequential escalation in costs. I also had the benefit of Ms Picos’ written submissions responding to the application for summary dismissal and in support of her own application to which I have had regard, dated 23 January 2015 and 17 March 2015.