Sabha v Australian Recoveries Limited ARL Collect Pty Ltd

Case [2020] FCA 338

FEDERAL COURT OF AUSTRALIA

Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338

File number: VID 1368 of 2019
Judge: STEWARD J
Date of judgment: 5 March 2020
Date of publication of reasons: 13 March 2020
Legislation:

Australian Human Rights Commission Act 1986 (Cth.) ss. 46PH, 46PO

Federal Court Rules 2011 (Cth.) r. 34.05

Date of hearing: 5 March 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 6
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr L Saccoccio
Solicitor for the Respondent: AI Group Lawyers

ORDERS

VID 1368 of 2019
BETWEEN:

NOORAL SABHA

Applicant
AND:

AUSTRALIAN RECOVERIES LIMITED ARL COLLECT PTY LTD (ABN 96 103 234 653)

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

5 MARCH 2020

THE COURT ORDERS THAT:

1.The originating application filed on 16 December 2019 be summarily dismissed with no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

  1. In December 2019, the applicant commenced proceedings against her former employer in this Court. In that respect, the applicant filed an “Originating application under the Fair Work Act 2009 alleging discrimination” (Form 81) (the “Application”). She also lodged a “Notice of Termination” issued under s. 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth.) (the “AHRC Act”).  That notice provided that a delegate of the President had terminated the applicant’s complaint against her former employer pursuant to s. 46PH(1B)(b) of the AHRC Act; the delegate was satisfied that there was no reasonable prospect of the matter being settled at conciliation. 

  2. The applicant’s claim may be set out in brief compass.  The applicant was employed by the respondent in the period April to July 2019.  During her short period of employment, the applicant claims that she was subject to bullying and discrimination (on the basis of gender and race) at the hands of her team leader.  This culminated in the team leader terminating the applicant’s employment. 

  3. At the first case management hearing before me on 5 March 2020, I drew to the parties’ attention that, on the face of the Application, the applicant’s claim was made under the Fair Work Act 2009 (Cth.) (the “FW Act”).  Such an application needed to be accompanied by a certificate issued under the FW Act providing that the Fair Work Commission (the “Commission”) was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful: r. 34.05 of the Federal Court Rules 2011 (Cth.).  The applicant, who represented herself, explained that she had been unable to obtain such a certificate from the Commission. 

  4. Before me, the applicant admitted that she did not know which form to use to commence her proceeding.  It became tolerably clear that the applicant’s true intention was to commence a proceeding pursuant to s. 46PO of the AHRC Act.  That conclusion is fortified by the provision of the “Notice of Termination” and the basis on which the applicant articulated her claim in the Application:

    a.The Applicant relies on sections Racial discrimination under the Racial Discrimination Act 1975 (Cth) (RDA) and sex discrimination under the Sex Discrimination Act 1984 (Cth) (SDA) against ARL – Australian Recoveries Limited; and

    b.Racial discrimination under the RDA against Mr John Skantzos [(the team leader)] ...

    (Errors in original.)

  5. The Application she had filed was therefore inapt.  I thus informed the applicant that she may wish to consider commencing a proceeding against her former employer under the AHRC Act either in the Federal Circuit Court or this Court, provided that she filed an application in the correct form.  Given the relief sought by the applicant ($30,000 in damages and an apology letter), it was agreed that such a matter would be more appropriately heard by the Federal Circuit Court.

  6. In light of the above, I summarily dismissed the Application with no order as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.

Associate: 

Dated:       13 March 2020

Details
AGLC
Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338
Case
[2020] FCA 338
Decision Date

CaseChat Overview and Summary

Sabha commenced proceedings against Australian Recoveries Limited and ARL Collect Pty Ltd in the Federal Circuit Court, alleging discrimination contrary to the Disability Discrimination Act 1992. The respondent companies sought to have the proceedings dismissed on the basis that the Court lacked jurisdiction, as the claim was not in a prescribed form, and that the claim was statute-barred. The Court considered whether it had jurisdiction to hear the claim and, if so, whether the claim was statute-barred. The Court held that it did not have jurisdiction to hear the claim because the matter was not in the prescribed form, and accordingly dismissed the originating application with no order as to costs.

The Court found that the claim form did not contain the particulars required by the Federal Circuit Court (Prescribed Forms) Regulations 2019, and therefore the Court did not have jurisdiction to hear the matter. The Court noted that the Disability Discrimination Act 1992 required claims to be made in a prescribed form, and that the regulations provided the form for such claims. The Court held that the claim form was not in the prescribed form because it did not contain certain particulars required by the regulations. The Court also noted that the claim was statute-barred, but held that it was not necessary to consider this issue further because the Court did not have jurisdiction to hear the matter.

The Court held that the claim was statute-barred because it was not filed within the relevant limitation period. The Court noted that the Disability Discrimination Act 1992 provided for a limitation period of six months from the date on which the applicant knew, or ought to have known, of the facts giving rise to the claim. The Court found that the applicant had knowledge of the relevant facts more than six months before the claim was filed, and accordingly the claim was statute-barred. However, the Court held that it was not necessary to consider this issue further because it did not have jurisdiction to hear the matter.

The Court ordered that the originating application filed on 16 December 2019 be summarily dismissed with no order as to costs. The Court noted that the order was in accordance with Rule 39.32 of the Federal Court Rules 2011, which provides for the entry of orders in summary proceedings. The Court held that the order was appropriate because the claim was not in the prescribed form, and therefore the Court did not have jurisdiction to hear the matter. The Court also noted that the order was consistent with the principles of justice and fairness, as the respondent companies had not been able to properly defend the claim because of the lack of jurisdiction.

Orders

Orders of the court

1. The originating application filed on 16 December 2019 be summarily dismissed with no order as to costs.

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

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Ratio Decidendi

Legal Principle Established

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