FEDERAL COURT OF AUSTRALIA
Rindeklev v Comcare [2025] FCA 291
Appeal from: Rindeklev v Comcare [2024] FCA 804 File number: WAD 217 of 2024 Judgment of: FEUTRILL J Date of judgment: 1 April 2025 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from decision dismissing application for leave to commence proceeding under s 46PO(3A) of Australian Human Rights Commission Act 1986 (Cth) – consideration of s 20(3) and s 24(1AA) of Federal Court of Australia Act 1976 (Cth) Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PH(1B), 46PO(1), 46PO(3A)
Federal Court of Australia Act 1976 (Cth) ss 19, 20(1), 20(1A), 20(2), 20(3), 24(1)(a), 24(1A), 24(1AA, s 31A
Sex Discrimination Act 1984 (Cth) ss 28A, 28L, 106
Federal Court Rules 2011 (Cth) rr 16.21(e), 26.01
Cases cited: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91
Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397
House v The King [1936] HCA 40; 55 CLR 499
James v WorkPower Inc [2018] FCA 2083
Johanson v Michael Blackledge Meats [2001] FMCA 6; 163 FLR 58
Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; 105 NSWLR 403
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 40 Date of hearing: 27 February 2025 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms P Bindon with Ms A Danti Solicitor for the Respondent: Moray & Agnew Lawyers ORDERS
WAD 217 of 2024 BETWEEN: GUNILLA RINDEKLEV
Applicant
AND: COMCARE
Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
1 APRIL 2025
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FEUTRILL J
Introduction
These reasons concern an application for leave to appeal. The primary judge made orders dismissing an application for leave to bring proceedings in the Court alleging unlawful discrimination under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). The primary judge refused leave, in substance, because he was not satisfied that there was sufficient merit in the claim the applicant seeks to advance to warrant the grant of leave: Rindeklev v Comcare [2024] FCA 804 at [24]-[38].
The applicant brought proceedings in the Administrative Appeals Tribunal against Comcare. As part of its response to the claims, Comcare (through its solicitors) provided a witness statement of a former work colleague with whom the applicant had been in a relationship. The witness statement included a paragraph that said the applicant had sent photographs to the witness taken when she was younger and at a time ‘when she advertised her services as…
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- AGLC
- Rindeklev v Comcare [2025] FCA 291
- Case
- [2025] FCA 291
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs of the application.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Ground 2 of the draft notice of appeal refers to substantial injustice if leave to appeal is refused and to important questions said to be raised in the appeal. Then follows ten paragraphs that appear to largely address the asserted merits of the unlawful discrimination claim the applicant intends making. These too may be put to one side as it is accepted that substantial injustice will result if leave is refused and the primary judge’s orders are wrong.Consideration Expressing disagreement, even strong disagreement, with the outcome of the primary judge’s reasons is not sufficient to raise doubt about the correctness of the primary judge’s orders to obtain a grant of leave to appeal. It is necessary for the applicant to identify some arguable appealable error (an error that an appellate court can correct) through the draft notice of appeal and (or) submissions. The Court may then assess whether the merits of the asserted error create sufficient doubt to warrant, in all the circumstances, the grant of leave to appeal. For the reasons that follow, the applicant has not identified any arguable appealable error or otherwise demonstrated that the primary judge’s order is attended with sufficient doubt to warrant the grant of leave to appeal.Nature of the applicant’s claim The applicant submits that the nature of her claim was set out in the originating application that was before the primary judge. The applicant pointed to a description of her complaint to the Commission under the heading ‘What happened?’ as summary of the relevant facts. The primary judge summarised the substance of the applicant’s claim in many parts of his Honour’s judgment: PJ [1], [2], [9]-[18]. The applicant has not identified any manner in which the primary judge failed to properly, adequately or fully summarise the nature of her claim. Relevantly, the primary judge said:19So, in the circumstances described above, the conduct that Ms Rindeklev says amounts to sexual harassment is the conduct of Comcare (by its lawyers) in submitting the witness statement with the offensive paragraph and seeking to rely upon it in the second application in circumstances where, so Ms Rindeklev contends, viewed objectively, the matters in that paragraph were not relevant (Comcare's Conduct). Further, for reasons I have explained, for present purposes her allegation must be approached on the basis that there is a reasonable basis to support her claim that the matters in the offending paragraph were irrelevant to the proceedings before the Tribunal but Comcare (by its lawyers) thought they were relevant.20In oral submissions, at times, Ms Rindeklev tended to treat Comcare's Conduct as being equivalent to Comcare (by its lawyers) making the statements attributed to the witness in the offending witness statement. She also referred to Comcare as having encouraged or procured the offending statement. Of course, it may be accepted that a forensic decision was made by Comcare's lawyers to include the offending paragraph in the statement that was uploaded. However, that is not the same as attributing the statement in that paragraph to Comcare (by its lawyers) such that they might be treated as themselves having said the things in the offending paragraph. 21Nor was there any basis put before the Court for some form of claim that Comcare (by its lawyers) encouraged or procured the witness to say what was in the statement (as distinct from recording his account to that effect) or that Comcare itself engaged in some act for which it might be liable or that Comcare instructed or induced its lawyers to present the witness statement. Ordinarily, a decision of that kind would be a forensic decision to be made by the lawyers in the discharge of their professional obligations after receiving the views of their client. 22Despite the reference by Ms Rindeklev during the course of oral submissions to the direct liability that may arise under s 105 of the Sex Discrimination Act for a person who 'causes, instructs, induces, aids or permits another person to do an act that is unlawful' under the legislation, no claim of that kind was made to the Commission. Although Ms Rindeklev alleged that Comcare had engaged in sexual harassment it was a claim based upon Comcare's responsibility for the acts of its lawyers. For the purposes of its submissions opposing leave, Comcare did not dispute its vicarious liability for the conduct of its lawyers.