Rindeklev v Comcare

In the matter of Rindeklev v Comcare, the applicant sought leave to advance a claim of unlawful discrimination against the respondent, Comcare, alleging that their conduct in filing a witness statement containing offensive comments in Administrative Appeal Tribunal proceedings amounted to sexual harassment, in contravention of the Sex Discrimination Act 1983 (Cth). The Australian Human Rights Commission had terminated the complaint for being misconceived or lacking substance. The Federal Court was required to decide whether the applicant's claim was reasonably arguable and whether it was in the interests of justice to grant leave for the applicant to proceed with their claim.

The court considered whether the impugned conduct could satisfy the statutory definition of sexual harassment under the Sex Discrimination Act, and whether the applicant's claim was arguable. The court found that the conduct in question did not amount to sexual harassment, as it did not constitute an unwelcome sexual advance or request for sexual favours. Furthermore, the comments made by the co-worker in the witness statement were not made about or to the applicant by Comcare, but rather in response to allegations made in the context of the applicant's workers' compensation claims. Therefore, the court concluded that the applicant's claim was not reasonably arguable and that it was not in the interests of justice to grant leave for the applicant to proceed with their claim.

The court dismissed the applicant's application for leave to bring the proceedings and dismissed the proceedings. Any application for costs was to be brought within 14 days. If an application was made under order 3, the other party could file and serve written submissions of no more than three pages in reply, together with any necessary affidavit in support. The question of costs was to be determined on the papers, subject to further order.