Picos v Seven West Media Ltd - [2015] FCA 660

FEDERAL COURT OF AUSTRALIA
Picos v Seven West Media Ltd [2015] FCA 660

Citation: Picos v Seven West Media Ltd [2015] FCA 660

Parties: CONNIE LOUISE PICOS v SEVEN WEST MEDIA LTD, TELSTRA LTD, HEALTHENGINE PTY LTD, MARCUS TAN and ADAM YAP

File number: NSD 741 of 2014

Judge: PERRY J

Date of judgment: 1 July 2015

Catchwords: HUMAN RIGHTS – where respondents seek application for summary dismissal or disjoinder – whether pleadings disclose reasonable cause of action under s 14, 28B, 105, 106 or 107 of the Sex Discrimination Act 1984 (Cth) – whether respondents liable pursuant to partnership in law – where the 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 summary dismissal application allowed on basis that pleadings disclose no reasonable cause of action

Legislation: Australian Human Rights Commission Act 1986 (Cth), s 46PH(2), 46PO
Federal Court of Australia Act 1976 (Cth), ss 31A, 37M
Federal Court Rules 2011 (Cth), r 9.08, 26.01
Partnership Act 1892 (NSW), ss 1, 46
Partnership Act 1895 (WA), ss 4, 6, 7(1)
Sex Discrimination Act 1984 (Cth), ss 14, 28A, 28B, 105, 106, 107

Cases cited: Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Dye v Commonwealth Securities Limited [2010] FCA 720
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Ghanem v Australia Reserch Council [2014] FCAFC 132
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401
Picos v Australian Federal Police [2015] FCA 118
Shammas v Canberra Institute of Technology [2014] FCA 71
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298

Date of hearing: Determined on the papers

Date of last submissions: 20 February 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 55

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: Mr D Thomas

Solicitor for the First Respondent: Johnson Winter & Slattery

Counsel for the Second Respondent: Ms A Munro

Solicitor for the Second Respondent: Telstra

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 741 of 2014

BETWEEN:
CONNIE LOUISE PICOS
Applicant

AND:
SEVEN WEST MEDIA LTD
First Respondent

TELSTRA LTD
Second Respondent

HEALTHENGINE PTY LTD
Third Respondent

MARCUS TAN
Fourth Respondent

ADAM YAP
Fifth Respondent

JUDGE:

PERRY J

DATE OF ORDER:

1 JULY 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Proceeding NSD 741 of 2014 is dismissed pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) as against the first and second respondents.
2.The applicant is to pay the costs of the first and second respondents as agreed or assessed.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCA 660
Decision Date: 1 July 2015

CaseChat Overview and Summary

In Picos v Seven West Media Ltd, the applicant, Miss Picos, brought a claim against various respondents, including Telstra and Seven West Media Ltd, alleging breaches of the Sex Discrimination Act 1984 (Cth) and partnership liability. Miss Picos sought to amend her pleadings to include these claims, but Telstra and Seven West sought either summary dismissal or disjoinder of their names from the proceedings. The primary legal issues before the court were whether the pleadings disclosed a reasonable cause of action under the Sex Discrimination Act and if Telstra and Seven West could be held liable under the law of partnership.

The court examined the pleadings and found that Miss Picos had not alleged any facts that would support a claim of discrimination by Telstra or Seven West under the Sex Discrimination Act. Additionally, the court noted that there were no facts pleaded to establish that Telstra or Seven West were in partnership with HealthEngine, as alleged. The court held that these deficiencies were incurable and that there was no reasonable prospect of success for Miss Picos' claims against Telstra and Seven West based on the evidence presented. Consequently, the court allowed the applications for summary dismissal of the claims against Telstra and Seven West, and dismissed the proceeding in its entirety as against them.

The final orders of the court were that the proceeding was dismissed as against Telstra and Seven West pursuant to section 31A(2) of the Federal Court of Australia Act 1976, and that Miss Picos was to pay the costs of Telstra and Seven West as agreed or assessed.

Orders

Orders of the court

1. Proceeding NSD 741 of 2014 is dismissed pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) as against the first and second respondents.

2. The applicant is to pay the costs of the first and second respondents as agreed or assessed.

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

Given that both the first and second respondents have made their applications in response to the applicant’s proposed amended pleading and that such an approach is most favourable to the applicant, I have decided the summary dismissal applications on the basis of Miss Picos’ proposed amended pleading and deferred the question of whether leave to amend should be granted pending the outcome of these applications. 3. EVIDENCE Telstra’s application is supported by an affidavit of Jacqueline Anne Harrop affirmed on 19 December 2014, while Seven West relies upon two affidavits affirmed by Ruveni Desaa Kelleher on 23 December 2014 and on 21 April 2015 In addition to the HealthEngine Twitter Records (to which I referred at [7] above), Miss Picos relied upon her affidavits affirmed on 29 December 2014, on 8 January 2015, on 18 January 2015 (headed “Hearing Affidavit”) and on 23 January 2015. Miss Picos also relied upon four sets of submissions as follows: (1)Applicant’s First Legal Submissions filed 29 January 2015;(2)Applicant’s Second Legal Submissions filed 16 February 2015;(3)Applicant’s Third Legal Submissions filed 16 February 2015; and(4)Applicant’s Fourth Legal Submissions filed 20 February 2015.4. RELEVANT PRINCIPLES Section 31A of the FCA Act relevantly provides that: (2) The 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. It is apparent from subs (3) that to obtain summary judgment, it is no longer necessary to demonstrate that the cause of action is “manifestly groundless” or “obviously untenable”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); cf Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92 (Dixon J), and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130 (Barwick CJ). Rather, as Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”… [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

Decision

Reasons for decision

Finally, the allegation of breach of contract relates to Miss Picos’ contract of employment with HealthEngine. For the reasons earlier given, she was not an employee of the moving respondents, and any claim against them on this ground must fail. 6. CONCLUSION The application instituted by Miss Picos should be dismissed with costs in so far as it relates to Telstra and Seven West.

Ratio Decidendi

Legal Principle Established

In the circumstances, however, I have decided that the proceeding should be dismissed as against Seven West and Telstra and therefore it is unnecessary to consider the application under r 9.08 which was relied upon in the alternative. 5. CONSIDERATION5.1 Introduction In paragraph 5 of the proposed amended pleadings, which deals with her claims against Seven West and Telstra, Miss Picos alleges that:HealthEngine is a business partnership. [Seven West and Telstra] partnered with [HealthEngine] in May 2013 to form the business partnership. [Seven West, Telstra and HealthEngine] are liable pursuant to the Sex Discrimination Act 1984 section 28B, section 105, section 106, section 107 and pursuant to the law on partnerships. Furthermore, at paragraph 17, Miss Picos alleges that the moving respondents “caused, induced, aided and permitted” the third, fourth and fifth respondents to sexually harass and unlawfully discriminate against her from June 2013. None of the material facts which constitute the elements of the statutory causes of action relied upon against the moving respondents are pleaded, nor any facts on the basis of which it is said that the moving respondents and HealthEngine were in partnership. These are not bare pleading deficiencies. For the reasons given below, the pleadings in part reveal that there is no reasonable cause of action with the result that the deficiency is incurable and it is otherwise apparent from the evidence on which the parties would seek to rely were the matter to proceed to trial that the claims made against Telstra and Seven West have no reasonable prospect of success. 5.2 Section 14, SD Act5.2.1No discrimination in employment alleged against the moving respondents Section 14 of the SD Act proscribes discrimination by an employer against an employee or potential employee on the grounds of sex or gender identity, relevantly, as follows:(1)It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:(a)in the arrangements made for the purpose of determining who should be offered employment;(b) in determining who should be offered employment; or(c) in the terms or conditions on which employment is offered.(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:(a)in the terms or conditions of employment that the employer affords the employee;(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;(c) by dismissing the employee; or(d) by subjecting the employee to any other detriment. By paragraph 2 of the proposed amended pleading, Miss Picos alleges that HealthEngine employed her from June 2013. She does not allege that Telstra or Seven West employed her or discriminated against her as an employee or prospective employee. The unanswered evidence of the moving respondents establishes the contrary. Searches undertaken by Telstra for the period 2010 to 18 December 2014 reveal that neither Miss Picos or Adam Yap had been employed by Telstra. While those searches disclosed that a person by the name of Marcus Tan had been engaged as a contractor, he had a different date of birth from the fourth respondent. Similarly, searches of the employee records for Seven West demonstrated that it had not employed anyone or engaged any contractors by the applicant’s name or by the name of Adam Yap or Marcus Tan. 5.2.2The attempt to attribute liability to the moving respondents based upon the allegation that they are in partnership with HealthEngine

Citation:	Picos v Seven West Media Ltd [2015] FCA 660
Parties:	CONNIE LOUISE PICOS v SEVEN WEST MEDIA LTD, TELSTRA LTD, HEALTHENGINE PTY LTD, MARCUS TAN and ADAM YAP
File number:	NSD 741 of 2014
Judge:	PERRY J
Date of judgment:	1 July 2015
Catchwords:	HUMAN RIGHTS – where respondents seek application for summary dismissal or disjoinder – whether pleadings disclose reasonable cause of action under s 14, 28B, 105, 106 or 107 of the Sex Discrimination Act 1984 (Cth) – whether respondents liable pursuant to partnership in law – where the 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 summary dismissal application allowed on basis that pleadings disclose no reasonable cause of action
Legislation:	Australian Human Rights Commission Act 1986 (Cth), s 46PH(2), 46PO Federal Court of Australia Act 1976 (Cth), ss 31A, 37M Federal Court Rules 2011 (Cth), r 9.08, 26.01 Partnership Act 1892 (NSW), ss 1, 46 Partnership Act 1895 (WA), ss 4, 6, 7(1) Sex Discrimination Act 1984 (Cth), ss 14, 28A, 28B, 105, 106, 107
Cases cited:	Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 Dye v Commonwealth Securities Limited [2010] FCA 720 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Ghanem v Australia Reserch Council [2014] FCAFC 132 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 Picos v Australian Federal Police [2015] FCA 118 Shammas v Canberra Institute of Technology [2014] FCA 71 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298
Date of hearing:	Determined on the papers
Date of last submissions:	20 February 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	55
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr D Thomas
Solicitor for the First Respondent:	Johnson Winter & Slattery
Counsel for the Second Respondent:	Ms A Munro
Solicitor for the Second Respondent:	Telstra

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 741 of 2014

JUDGE:	PERRY J
DATE OF ORDER:	1 JULY 2015
WHERE MADE:	SYDNEY