Sivwright v St Ives Group Pty Ltd (No 2)

Link copied
Case Copied 71 min read

FEDERAL COURT OF AUSTRALIA

Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063  

File number: WAD 244 of 2020
Judgment of: FEUTRILL JJ
Date of judgment: 8 September 2023
Catchwords: HUMAN RIGHTS - application for leave pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) alleging unlawful discrimination - where complaint of discrimination to the Australian Human Rights Commission was terminated under s 46PH(1)(b) of the Act due to delay - whether the applicant’s claims of sex and disability discrimination, harassment and victimisation reasonably arguable – whether delay explained – whether prejudice caused by delay – consideration of principles applicable to leave – jurisdictional objection – whether respondents to the terminated complaint
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 3, 3(1), 11(1)(aa), 13, 14(1), 19(1), 46(1)(b)(ii), 46(1B)(a), 46P, 46P(1), 46P(1A), 46P(1B), 46P(4), 46PD, 46PD(1), 46PD(3), 46PD(3A), 46PH, 46PH(1), 46PH(1)(b), 46PH(1)(b)(ii), 46PH(1B), 46PH(1C), 46PO, 46PO(1), 46PO(3A); Ptt II, IIB,

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 15, 15(2), 35(1), 42(1), 43; Pt 2

Evidence Act 1995 (Cth) ss 44, 59, 87

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37M, 37N, 37P

Sex Discrimination Act 1984 (Cth) ss 5, 14, 14(2), 15, 28A, 28A(1A), 28B, 28B(1)(a), 28B(2), 28B(6), 28D, 94, 105, 106; Ptt II, IV

Federal Court Rules 2011 (Cth) rr 2.32(1)(b), 2.32(3)(a), 26.01

Cases cited:

Aldridge v Booth (1988) 80 ALR 1

Beecham Group Limited v Bristol Laboratories Pty Limited (1968) [1968] HCA 1; 118 CLR 618

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720

Budini v Sunnyfield [2019] FCA 2164

Douthie v Commonwealth [2022] FCA 720

Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381

Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331

Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; (1989) 85 ALR 503

Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; (2020) 277 FCR 511

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344

James v Workpower Inc [2018] FCA 2083

Matthews v Markos [2019] FCA 1827

Nandutu v University of Sydney [2019] FCCA 2754

O’Callaghan v Loder [1983] 3 NWLR 89

Penhall-Jones v State of New South Wales (No 2) [2006] FMCA 927

Penhall-Jones v New South Wales [2007] FCA 925

Rossi v Qantas Airways Ltd (No 2) v [2020] FCA 1080

Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729

Sklavos v Australian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247

Travers v New South Wales [2001] FMCA 18; (2001) 163 FLR 99

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Sivwright v St Ives Group Pty Ltd (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FCA 1063
Decision Date

CaseChat Overview and Summary

Sivwright v St Ives Group Pty Ltd (No 2) involved the applicant, Ms Sivwright, seeking leave to proceed with a complaint of unlawful discrimination against the respondents, St Ives Group Pty Ltd, Mr Heath, Ms De Ronchi, and Mr Ross-Adams, pursuant to section 46PO of the Australian Human Rights Commission Act 1986 (Cth). The application arose from a terminated complaint to the Australian Human Rights Commission, which was dismissed due to delay under section 46PH(1)(b) of the Act. Ms Sivwright alleged sex and disability discrimination, harassment, and victimisation, and the court had to determine whether her claims were reasonably arguable, whether the delay was adequately explained, and whether the delay caused prejudice to the respondents.

The court examined several legal issues, including the principles governing the exercise of discretion under section 46PO(3A) of the Act. The court noted that the discretion must be exercised judicially and in accordance with the interests of justice. Factors such as delay, prejudice to respondents, and the nature of the claims were considered. The court also evaluated the evidence provided by Ms Sivwright and the respondents, including affidavits and medical reports, to determine whether the delay in filing the complaint was justified and whether it prejudiced the respondents. The court found that Ms Sivwright's mental health condition partially explained the delay, and the respondents were generally aware of the allegations since 2015, mitigating the impact of the delay.

The court concluded that the delay was not entirely unexplained due to Ms Sivwright's mental health issues and the respondents' general awareness of the allegations. While the delay caused some prejudice, it was not sufficient to deny Ms Sivwright leave to proceed with her complaint. The court accepted that the respondents would face general prejudice but found no specific prejudice that would bar Ms Sivwright from proceeding. The court granted Ms Sivwright leave to make the application against St Ives and Mr Heath but dismissed the application against Ms De Ronchi and Mr Ross-Adams due to the marked prejudice they would face.

The court ordered that Ms Sivwright be granted leave to proceed with her complaint against St Ives and Mr Heath. The application against Ms De Ronchi and Mr Ross-Adams was dismissed, and the costs of the originating process were reserved. The decision underscored the importance of balancing the need for prompt complaints with the realities of individual circumstances, particularly where mental health issues are involved. The court's decision allowed Ms Sivwright to pursue her claims while ensuring that the respondents were not unduly prejudiced by the delay.

Orders

Orders of the court

1. The applicant have leave to make an application alleging unlawful discrimination by the first and second respondents.

2. The originating application as against the third, fourth and fifth respondents be dismissed.

3. The costs of the originating process be reserved.

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

Ultimately, s 46PO(3A) involves the exercise of a discretion. There are no express limitations on the exercise of that discretion except that, of course, it must be exercised judicially and, it is implicit, as Mortimer J said in Workpower, that the exercise is governed by the interests of the administration of justice. Many factors may be relevant to the exercise of the discretion. However, the weight to be given to those factors is a matter for the Court in the exercise of the discretion. EvidenceApplicant’s evidence The applicant read and relied upon two affidavits she made in support of her application. Her first affidavit sworn on 8 January 2021 was tendered as Exhibit 1.1. Her second affidavit, undated but provided to the Court on 9 July 2021, was tendered as Exhibit 1.2. The applicant’s first affidavit deposes to facts in support of the allegations contained in a statement of claim she filed on 2 November 2020. The applicant's second affidavit deposes facts directed to an explanation for the delay between the termination of her employment in October 2015 and the complaint she made to the Commission in January 2020. The applicant read and relied on two affidavits of Dr Blumberg. The first affirmed on 7 January 2021 was received as Exhibit 2.1. The second affirmed on 4 August 2021 was received as Exhibit 2.2. Dr Blumberg is a consultant psychiatrist who has treated the applicant since February 2016. Exhibited to his first affidavit is his medical report dated 7 January 2021 and certain instructions in relation to that report. Exhibited to his second affidavit is his medical report dated 14 July 2021 and certain instructions he received. The applicant read and relied upon an affidavit of Mr Phillip George Brunner sworn 18 November 2021 and received as Exhibit 3. Mr Brunner is a solicitor employed by Bailiwick Legal, the solicitors for the applicant. His affidavit exhibits a medical report of Dr Blumberg dated 14 June 2021. The applicant read and relied upon two affidavits of Ms Matilda Jessica Lloyd. Ms Lloyd is a paralegal employed by Bailiwick Legal. Her first affidavit was sworn 3 February 2022 and received as Exhibit 4.1. Her second affidavit was sworn 12 July 2022 and received as Exhibit 4.2. Ms Lloyd's first affidavit exhibits another medical report of Dr Blumberg dated 2 February 2022 and certain instructions in relation to that report. Ms Lloyd's second affidavit exhibits various correspondence between Bailiwick Legal and solicitors acting for St Ives and (or) the Commission. The applicant tendered a medical report of Dr Anthony J Mander received as Exhibit 5. Dr Mander is a consultant psychiatrist. He prepared his medical report for SRB Legal, as the solicitors for AAI Limited, trading as GIO. That report appears to have been prepared for the purposes of a Workers' Compensation claim the applicant made against St Ives.St Ives' evidence St Ives read and relied on two affidavits of Ms Jenny Maree McKenzie. Ms McKenzie’s first affidavit affirmed 14 April 2021 was received as Exhibit 6.1. Ms McKenzie’s second affidavit affirmed 28 April 2021 was received as Exhibit 6.2. Ms McKenzie’s first affidavit is more than 700 pages in length. As explained in more detail later, the majority of the documents exhibited to that affidavit are directed towards St Ives' submissions to the effect, based on contemporaneous text messages and notes of the applicant, it is not reasonably arguable that Mr Heath’s sexual advances to which she deposes were ‘unwelcome’. The evidence of Mr Heath, Ms De Ronchi and Mr Ross-Adams

Decision

Reasons for decision

Ms De Ronchi and Mr Ross-Adams are in a different position. Although allegations against St Ives may have involved their acts, omissions or practices, there is no evidence that they received notice of the applicant’s allegations that they have liability directly to the applicant for unlawful victimisation before she served the originating process in these proceedings. The general prejudice to these two respondents is more marked and offends more obviously the policy of the AHCR Act to ensure allegations of unlawful discrimination are made promptly and not many years after the alleged acts, omissions or practices without notice or warning to the respondents to the complaint.Conclusions about delay Delay and any explanation for delay in making a complaint to the Commissioner is manifestly a relevant consideration in the exercise of the discretion to grant leave under s 46PO(3A). However, delay, even unexplained delay, is not in and of itself a determinative factor. Any prejudice to respondents to a complaint resulting from delay is an important consideration. In the present case, the respondents were not able to identify any specific prejudice resulting from the delay. As already noted, I accept that the respondents will be affected by general prejudice. St Ives and Mr Heath to a lesser extent and Ms De Ronchi and Mr Ross-Adams to a significant extent. Otherwise, in my view, the respondents have failed to make good the submission that the applicant’s delay is effectively ‘unexplained’. Having regard to the unchallenged evidence that the applicant has suffered and continues to suffer from major depressive illness and her direct evidence of the symptoms from which she suffers, I accept that her illness has affected her ability to instruct her solicitors to advance her allegations of unlawful discrimination in formal legal proceedings. While that illness is not a complete impediment to providing instructions to her solicitors or to maintaining legal proceedings, it renders the effort necessary to sustain legal proceedings more difficult. Therefore, while the applicant could have made a complaint before January 2020, the state of her mental health provides at least a partial explanation for her failure to take that step earlier. It is also evident that St Ives and Mr Heath have had notice of the applicant’s allegations against them, in a general sense, since November 2015 and, in a more specific sense, since June 2016. Although the evidence is limited, the parties appear to have engaged with the dispute resolution mechanism in the applicant’s contract of employment, but conferral between the parties was delayed for reasons that are not completely addressed in the evidence. To the extent that there is evidence, it suggests that there was an intention to resolve the applicant’s Workers’ Compensation claim before her employment claims, but that process was derailed at some time during 2018 or early 2019. It follows that St Ives and Mr Heath have been ‘on notice’ of the substance of the applicant’s allegations more-or-less since November 2015. The applicant’s delay in making a complaint to the Commission is also partly explained by engagement in an informal process by which the parties made some attempts to resolve her claims.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.