FEDERAL COURT OF AUSTRALIA
Rossi v Qantas Airways Limited [2020] FCA 573
File number: NSD 1549 of 2019 Judge: GLEESON J Date of judgment: 1 May 2020 Catchwords: PRACTICE AND PROCEDURE – third party application for leave to inspect statement of claim – whether a document unrestricted under Federal Court Rules 2011 r 2.32(2), in advance of leave to make application to Federal Court under Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)(a) – application granted Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO(1), (3A)(a)
Federal Court Rules 2011 rr 2.32(2), (4); 34.163
Cases cited: Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101
Reynolds v JP Morgan Administrative Services Australia Limited (No 2) and Another [2011] FCA 489; (2011) 193 FCR 507
Date of hearing: 23 April 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: K Edwards Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First Respondent: E Raper SC with A Smorchevsky Solicitor for the First Respondent: Ashurst Australia Counsel for the Second and Third Respondents: R Davern Solicitor for the Second and Third Respondents: K&L Gates Solicitor for The Age Company Limited: S White of The Age Company Limited
Solicitor for Specialist News: B Burke of Banki Haddock and Fiora ORDERS
NSD 1549 of 2019 BETWEEN: SARA ROSSI
Applicant
AND: QANTAS AIRWAYS LIMITED
First Respondent
MAURICE BLACKBURN PTY LTD TRADING AS MAURICE BLACKBURN CASHMAN FORMERLY KNOWN AS MAURICE BLACKBURN CASHMAN GIPPSLAND LAWYERS PTY LTD
Second Respondent
JOHN MCCRISTAL
Third Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
1 MAY 2020
THE COURT ORDERS THAT:
1.Leave be granted to Specialist News and The Age Company Limited to inspect the statement of claim filed on 11 February 2020, pursuant to r 2.32 of the Federal Court Rules 2011.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
The applicant (Ms Rossi) has commenced this proceeding under the Australian Human Rights Commission Act 1986 (Cth) (Act), principally seeking to make an application to this Court alleging unlawful discrimination by the respondents pursuant to s 46PO(1).
In addition, Ms Rossi seeks orders relating to a deed, described as “[t]he Deed of release purporting to settle any and all claims the Applicant had in respect of the employment, signed in respect of the Applicant’s Claim brought in the County Court of Melbourne No CI 07-03600”. In particular, Ms Rossi seeks orders to the effect that the deed be declared void or set aside.
By s 46PO(3A)(a) of the Act, Ms Rossi’s application must not be made unless this Court grants leave to make the application.
In accordance with r 34.163 of the Federal Court Rules 2011 (Rules), the proceeding was commenced by an originating application, in accordance with Form 116, accompanied by a copy…
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- AGLC
- Rossi v Qantas Airways Limited [2020] FCA 573
- Case
- [2020] FCA 573
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the statement of claim, noting that it was a pleading prepared by Ms Rossi’s lawyers and certified to provide a proper basis for each allegation. The court concluded that the statement of claim fell within the unrestricted category of documents under rule 2.32(2) of the Federal Court Rules 2011. While the court recognised that the statement of claim contained allegations against numerous individuals and had not been deployed in open court, it also found that the purposes for which the media parties sought access were legitimate. The significant passage of time since the alleged incidents and the need for fair and accurate reporting were factors that weighed in favour of granting access. The court further noted that the respondents had not suggested that the statement of claim contained scandalous or confidential material. Ultimately, the court determined that the factors against granting access were not sufficiently compelling to warrant withholding the document.
The Federal Court granted leave to Specialist News and The Age Company Limited to inspect the statement of claim, considering the balance of interests. The court ordered that the applicants be granted leave to inspect the statement of claim filed on 11 February 2020, pursuant to rule 2.32 of the Federal Court Rules 2011. The decision highlights the court's consideration of the principles of open justice, the nature of the pleading, and the legitimate purposes of the media in seeking access to legal documents.
Orders
Orders of the court
1. Leave be granted to Specialist News and The Age Company Limited to inspect the statement of claim filed on 11 February 2020, pursuant to r 2.32 of the Federal Court Rules 2011.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
At [19], her Honour noted that the complaint had not been deployed in open court (although it was extensively cross-referenced in the statement of claim), and that there was no aspect of the principles of open justice which favoured the release of the complaint.Consideration The respondents did not suggest that the statement of claim is not a pleading in the sense that it does not have the usual characteristics of a pleading. I have read the statement of claim, which was prepared by Ms Rossi’s lawyers and includes the usual certification that the available factual and legal material provides a proper basis for each allegation in the pleading. On its face, the statement of claim is a typical pleading in that it identifies material facts relied upon by Ms Rossi to support her claims for relief, and ostensibly seeks to convey to the respondents the case that Ms Rossi seeks to bring against the respondents. It contains allegations of nine sets of incidences of sex discrimination, four allegations of sexual harassment (one which might be described as systemic, one which involves unidentified perpetrators and two which involve identified perpetrators), and allegations of disability discrimination and unconscionable conduct and duress by the Maurice Blackburn parties. In my view, the statement of claim is a pleading, filed pursuant to an order to file a statement of claim within the meaning of the Rules, on its face intended to serve the purpose of a pleading, and consequently falls initially in the unrestricted category of documents in r 2.32(2). The statement of claim is not relevantly analogous to a complaint to the Commission, in that it is not a private and confidential document and is not protected under the Act. The purposes for which the media parties seek access to the statement of claim are legitimate. Essentially, they seek to pursue fair and accurate reporting of the proceeding. Part of the context of the request is the significant passage of time since the incidents that are the subject of Ms Rossi’s claim. As against Qantas, the allegations cover the period from 1990 to April 2003. As against the Maurice Blackburn parties, the allegations principally concern the period from about October to December 2008. These are not matters that would ordinarily tell against granting access to a pleading within the meaning of r 2.32. There was no suggestion that the statement of claim contains scandalous or confidential material. However, the statement of claim contains allegations against numerous named employees or former employees of Qantas. The contents of the statement of claim have not been referred to in open court and neither the respondents nor any of the individuals named in the statement of claim have yet had an opportunity to respond to the allegations in the statement of the claim in the proceeding. Further, if the leave application fails, the respondents will not be required to file any defence. I accept that these are matters that tend against the grant of access.