Sultana v Spotless Facility Services Pty Limited

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sultana v Spotless Facility Services Pty Limited [2025] FedCFamC2G 437

File number(s): SYG 1683 of 2023
Judgment of: JUDGE CAMERON
Date of judgment: 28 March 2025
Catchwords: HUMAN RIGHTS – Complaint to Australian Human Rights Commission (“Commission”) terminated for having been made more than 24 months after the events complained of – events complained of occurred more than 10 years before complaint made to Commission – application made to the Court consequent upon Commission’s termination of the complaint – application to the Court required antecedent leave – leave sought nunc pro tunc – considerations relevant to the granting of the leave sought.  
Legislation:

Sex Discrimination Act 1984 (Cth)

Racial Discrimination Act 1975(Cth)

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

Human Rights Legislation Amendment Act 2017 (Cth) sch 2 items 53 and 58

Cases cited:

James v WorkPower Inc [2018] FCA 2083

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579

Matthews v Markos [2019] FCA 1827

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

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Division: General
Number of paragraphs: 26
Date of hearing: 13 February 2024
Place: Sydney
Applicant: Applicant in person
Counsel for the Respondent: Mr McLean
Solicitor for the Respondent: Kingston Reid

ORDERS

SYG 1683 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAHAMIDA SULTANA

Applicant
AND:

SPOTLESS FACILITY SERVICES PTY LIMITED

Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

28 MARCH 2025

THE COURT ORDERS THAT:

1.Leave nunc pro tunc to make the application filed in this proceeding on 23 October 2023 be refused.

2.The proceeding be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. The applicant, Ms Sultana, filed an application on 23 October 2023 alleging contraventions by the respondent, Spotless Facility Services Pty Limited (Spotless), of the Sex Discrimination Act 1984 (Cth) (SD Act) and the Racial Discrimination Act 1975(Cth) (RD Act).  In that application she has sought relief under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).  Attached to the application was a copy of a notice of termination dated 12 September 2023 issued by the Australian Human Rights Commission (Commission) in respect of a complaint made to it on or about 20 June 2023. Because the Commission terminated Ms Sultana’s complaint for having been filed more than 24 months after the events she has…

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Details
Case
[2025] FedCFamC2G 437
Decision Date

CaseChat Overview and Summary

Ms Sultana brought an application to the Federal Court of Australia following the Australian Human Rights Commission's decision to terminate her complaint for being made more than 24 months after the events complained of. The complaint related to allegations of sexual harassment and sex discrimination against her employer, Spotless Facility Services Pty Limited, and an employee identified only as "Frank." Ms Sultana's employment with Spotless transitioned from permanent part-time to casual in 2011, and she alleged that Frank, an employee whose full name and contact details she could not provide, engaged in sexually harassing conduct towards her in 2012. Ms Sultana claimed that she did not make a complaint at the time because she was unaware of her rights and the process for making a complaint. Spotless, now a subsidiary of Downer EDI Limited, argued that it could not respond to the allegations due to the significant passage of time and the inability to identify Frank or recall events accurately.

The court had to determine whether to grant Ms Sultana leave to bring her application, considering the delay in making the complaint and the potential prejudice to Spotless. The court noted that while Ms Sultana's allegations disclosed a reasonable cause of action, the significant delay in bringing the complaint prejudiced Spotless's ability to respond adequately. The court emphasised the importance of timely complaints to ensure justice and the quality of evidence. It concluded that the delay had likely resulted in the loss of relevant evidence and made it difficult to achieve a fair resolution. Consequently, the court refused Ms Sultana's application for leave nunc pro tunc, and the proceeding was dismissed.

The court's decision underscores the critical importance of timely complaints in human rights matters and the potential consequences of significant delays, including the erosion of evidence and the potential for injustice. The court's reasoning highlighted the need for complainants to be aware of their rights and the importance of prompt action to ensure that disputes are resolved fairly and justly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Ms Sultana’s application did not identify with any particularity which sections of the SD Act or the RD Act were alleged to have been contravened.BACKGROUND FACTS Other matters contextually relevant to Ms Sultana’s complaint were set out in the Commissions’ notice of termination, which I summarise by way of background as follows: (a)in 2009 Ms Sultana commenced permanent part-time employment with Spotless Services, which transitioned to casual employment in 2011; (b)Ms Sultana claimed that in late 2011 she met another employee of Spotless Services named “Frank” whose full name was unknown to her. They worked around 3 shifts together between January and March 2012; (c)“Frank” shared with her details of his sex life and suggested to her that he might make her his “girlfriend”. She also said that in the course of giving her a lift home:… Frank began to rub her breasts over, and then under her clothes, before grabbing her hand and moving it toward his groin. She states the car was locked and she felt helpless and did not know how to escape. When they reached her apartment building, she claims Frank unlocked the car, pulled her pants down to her thighs and slapped her backside before she ran inside. Ms Sultana says during the alleged events she attempted to remove Frank’s hand and direct him to stop, to no avail. Ms Sultana states that following the incident, Frank would stare at her in the workplace, making her feel uncomfortable. …(d)Ms Sultana claimed that she did not make a complaint (to the Commission) at the time of the various acts complained of because she did not know her rights and entitlements, how to make a complaint or how raise a grievance internally with Spotless Services; (e)Ms Sultana’s employment was terminated by Spotless Services in or around September 2012; (f)the Commission recorded that Ms Sultana claimed that she had provided extensive details about the identity of Frank including his approximate age, race, height, appearance and marriage status, and had submitted that his identity should have been obvious to the respondent; (g)the Commission had been unable to notify “Frank” of the complaint against him because Ms Sultana could not provide his surname or any contact details and Spotless Services had been unable to identify him from their own records for the following reasons: •In 2017, Spotless became a wholly owned subsidiary of Downer EDI Limited (Downer). Downer completed the divestment of its hospitality business, including those contracts operated by Spotless, between 2020 – 2021.•The time between the most recent alleged conduct and the time the complaint was made to the Commission was at least 10 years and 9 months.•Spotless has been unable to locate any records or people who could verify the allegations of sexual harassment or sex discrimination described in the complaint.•It is unable to agree to the allegations and otherwise rejects that it could be vicariously liable for the actions of Frank, who cannot be identified.•Members of the senior management of Spotless who were overseeing the Human Resources functions of the business at the time of the allegations are no longer engaged by the Spotless or within Downer.•Spotless was unable to identify any person who could have worked in the business unit at the time of the alleged conduct.•Even if Spotless were able to identify and contact people who worked in the business at the same time as the complainant, there is a real risk that due to the passage of time, the parties may no longer accurately recall events.•Spotless does not have access to or otherwise control people or records from the time of the alleged conduct and has no ability to prepare an informed response.•The complainant fails to particularise the identity of the second respondent, Frank, and Spotless has been unable to identify him. The description of him is imprecise and Spotless did not and was not required to keep records of an employee’s cultural background, height, hair, marital status or whether or not they have children. … (h)Spotless had also advised the Commission, in response to a suggestion that it check its records for particular periods identified by reference to Ms Sultana’s work timesheets, that it had been unable to identify “Frank”. RESPONDENT’S EVIDENCE Andrew Lynch

Evidence

Evidence Before The Court

Other matters contextually relevant to Ms Sultana’s complaint were set out in the Commissions’ notice of termination, which I summarise by way of background as follows: (a)in 2009 Ms Sultana commenced permanent part-time employment with Spotless Services, which transitioned to casual employment in 2011; (b)Ms Sultana claimed that in late 2011 she met another employee of Spotless Services named “Frank” whose full name was unknown to her. They worked around 3 shifts together between January and March 2012; (c)“Frank” shared with her details of his sex life and suggested to her that he might make her his “girlfriend”. She also said that in the course of giving her a lift home:… Frank began to rub her breasts over, and then under her clothes, before grabbing her hand and moving it toward his groin. She states the car was locked and she felt helpless and did not know how to escape. When they reached her apartment building, she claims Frank unlocked the car, pulled her pants down to her thighs and slapped her backside before she ran inside. Ms Sultana says during the alleged events she attempted to remove Frank’s hand and direct him to stop, to no avail. Ms Sultana states that following the incident, Frank would stare at her in the workplace, making her feel uncomfortable. …(d)Ms Sultana claimed that she did not make a complaint (to the Commission) at the time of the various acts complained of because she did not know her rights and entitlements, how to make a complaint or how raise a grievance internally with Spotless Services; (e)Ms Sultana’s employment was terminated by Spotless Services in or around September 2012; (f)the Commission recorded that Ms Sultana claimed that she had provided extensive details about the identity of Frank including his approximate age, race, height, appearance and marriage status, and had submitted that his identity should have been obvious to the respondent; (g)the Commission had been unable to notify “Frank” of the complaint against him because Ms Sultana could not provide his surname or any contact details and Spotless Services had been unable to identify him from their own records for the following reasons: •In 2017, Spotless became a wholly owned subsidiary of Downer EDI Limited (Downer). Downer completed the divestment of its hospitality business, including those contracts operated by Spotless, between 2020 – 2021.•The time between the most recent alleged conduct and the time the complaint was made to the Commission was at least 10 years and 9 months.•Spotless has been unable to locate any records or people who could verify the allegations of sexual harassment or sex discrimination described in the complaint.•It is unable to agree to the allegations and otherwise rejects that it could be vicariously liable for the actions of Frank, who cannot be identified.•Members of the senior management of Spotless who were overseeing the Human Resources functions of the business at the time of the allegations are no longer engaged by the Spotless or within Downer.•Spotless was unable to identify any person who could have worked in the business unit at the time of the alleged conduct.•Even if Spotless were able to identify and contact people who worked in the business at the same time as the complainant, there is a real risk that due to the passage of time, the parties may no longer accurately recall events.•Spotless does not have access to or otherwise control people or records from the time of the alleged conduct and has no ability to prepare an informed response.•The complainant fails to particularise the identity of the second respondent, Frank, and Spotless has been unable to identify him. The description of him is imprecise and Spotless did not and was not required to keep records of an employee’s cultural background, height, hair, marital status or whether or not they have children. … (h)Spotless had also advised the Commission, in response to a suggestion that it check its records for particular periods identified by reference to Ms Sultana’s work timesheets, that it had been unable to identify “Frank”. RESPONDENT’S EVIDENCE Andrew Lynch

Decision

Reasons for decision

Although I am not unsympathetic to Ms Sultana’s situation and to the distress she says she has suffered, she has left her compliant too late for it to be able to be determined with any degree of fairness to Spotless. In the circumstances, leave under s.46PH(1)(b) of the AHRC Act is refused.CONCLUSION As leave nunc pro tunc to make the application filed on 23 October 2023 is to be refused, the proceeding will be dismissed.

Ratio Decidendi

Legal Principle Established

Spotless Services filed written submissions dated 12 February 2024. It argued that leave to proceed should not be granted because of the lengthy delay in making the complaint to the Commission and the prejudice it said would suffer if it had to respond to allegations of misconduct that is said to have been engaged in some dozen years earlier by a person who cannot be identified.CONSIDERATION Ms Sultana’s allegations disclose a reasonable cause of action but that fact is of comparatively little significance when the consequences of the delay in bringing the proceeding are considered. Although there is no time limit for a complaint to be made to the Commission, the Parliament’s recognition that a late complaint may be a source of injustice is reflected in s.46PH(1)(b) of the AHRC Act, quoted earlier, and in the fact that complaints terminated under that provision cannot, unless the Court grants leave, be the subject of an application alleging unlawful discrimination: s.46PO(1) and (3A) of the AHRC Act. When deciding whether leave to commence such a proceeding should be granted, considerations relevant to the exercise of a discretion to extend time to bring a proceeding can be relevant: Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080 at [23]-[26]. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J said at 551-552:For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.” Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible … (references omitted)