Von Schoeler v ALAN TAYLOR and Company Ltd Trading as Boral Timber

FEDERAL CIRCUIT COURT OF AUSTRALIA

VON SCHOELER v ALAN TAYLOR & COMPANY LTD TRADING AS BORAL TIMBER & ORS

[2018] FCCA 3932

Catchwords:
HUMAN RIGHTS – Unlawful discrimination.

Legislation:

Sex Discrimination Act 1984, ss.5, 7A, 14, 28B(2), and 94

Purvis v State of New South Wales (2003) 202 ALR 133

Applicant:

LILO HANA VON SCHOELER

First Respondent:

ALAN TAYLOR & COMPANY LTD TRADING AS BORAL TIMBER

Second Respondent:

JOHN URQUHART

Third Respondent:

TIMOTHY HEY

File Number:

BRG 893 of 2011

Judgment of:

Judge Jarrett

Hearing date:

8 & 9 October 2012

Date of Last Submission:

29 October 2012

Delivered at:

Brisbane

Delivered on:

23 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Reidy

Solicitors for the Applicant:

Susan Moriarty & Associates

Counsel for the First and Third Respondents:

Mr Marshall

Solicitors for the First and Third Respondents:

FCB Workplace Law

There being no appearance for the Second Respondent

ORDERS

Stand over the application for the making of orders consistent with these reasons upon the production of a draft order by the applicant for that purpose.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 893 of 2011

LILO HANA VON SCHOELER

Applicant

And

ALAN TAYLOR & COMPANY LTD TRADING AS BORAL TIMBER

First Respondent

And

JOHN URQUHART

Second Respondent

And

TIMOTHY HEY

Third Respondent

REASONS FOR JUDGMENT

This is an application under the Sex Discrimination Act 1984 (Cth) for certain declarations and orders to be made in respect of breaches of that Act by the respondents. The breaches relate to the applicant’s employment by the first respondent and her dealings with the second and third respondents, her co-workers. The alleged breaches are alleged to be sex discrimination, discrimination on the ground of family responsibilities, sexual harassment, and victimisation. The applicant also seeks orders for damages and costs.
The applicant was employed by the first respondent in a plywood factory as a grader. She was touched on the buttocks by another employee. That was the catalyst, it seems, for the series of events that ultimately resulted in these proceedings. As will be revealed throughout the course of these reasons, I had some difficulties with the applicant’s pleading and her submissions.

Preliminaries

The applicant seeks declarations that each of the respondents has breached ss.5, 7A, 14, 28B(2), and 94 of the Sex Discrimination Act. I will deal with each section in turn as well as the issue of vicarious liability pertaining to the first respondent, but first I must address several issues with the applicant’s pleading.
The applicant’s pleading was seemingly completed in the form prescribed by r.41.02A of the Federal Circuit Court Rules 2001. In this Court, pleadings must comply with Part 16 of the Federal Court Rules 2011, although substantial compliance is sufficient (see r.2.04(1) of the Federal Circuit Court Rules). The points of claim annexed to the application are clearly a form of pleading. Importantly, r.16.02(1)(e) of the Federal Court Rules requires a pleading to state any statutory provisions on which the applicant relies.
Section 5 of the Sex Discrimination Act sets out the circumstances in which a person is taken to discriminate against another person on the ground of sex. Subsection 5(1) describes a form of discrimination that lawyers usually refer to as “direct” discrimination whereas s.5(2) describes what is known as “indirect” discrimination. The provisions of the Act describing discrimination on the grounds of marital status (s.6) and pregnancy (s.7) similarly differentiate between direct and indirect forms of discrimination, whereas the provision for discrimination on the ground of family responsibilities on which the applicant relies (i.e. s.7A) seemingly does not.
These are the definition provisions that set out the elements that must be made out in order to prove a breach. They fall under Part I of the Act which concerns the interpretation, operation, and objects of the Act. Part I works in conjunction with Part II, which sets out conduct that the Act prohibits and deems unlawful. Essentially, Part II prohibits the conduct that is defined in Part I.
For reasons that are not clear, the applicant’s “points of claim” contained in her application refer to the Act’s definition sections for discrimination only. She does not explicitly refer to the sections that actually prohibit the alleged discriminatory conduct. The applicant relies on s.5 of the Act which contains the elements of sex discrimination but not s.14(2) that prohibits employers from discriminating against employees on the ground of the employee’s sex. The applicant also relies on s.7(a) to allege family discrimination but does not set out s.14(3A) which prohibits such discrimination.
Strangely, the opposite issue arises in the way the applicant pleads sexual harassment. The applicant pleads s.28B(2) of the Act, which makes sexual harassment between employees unlawful, but not s.28A which defines how a person sexual harasses another.
No drafting issue arises in respect of s.94, which is a self-contained provision, so to speak, falling under Part IV of the Act: it includes both a definition for and a prohibition against victimisation.
The applicant does not plead s.106 of the Act despite seeking orders about the first respondent’s vicarious liability for the conduct of the second and third respondent employees.
Finally, the applicant’s statement of claim does not clearly specify who the breaches of the Act are alleged against. In all of the paragraphs alleging a breach (not just those concerning sex discrimination) the applicant simply pleads that she “alleges a breach of [the relevant section number] SDA”. Hence the first respondent did not to respond to those paragraphs as “no allegation is made against it”.
Despite the omission of certain provisions in the applicant’s points of claim and the first respondent’s position that “no allegation is made against it”, the applicant’s case is not lost. It is clear from submissions that the first respondent has been able to respond to the allegations ostensibly made against it by the applicant. Moreover, the orders the applicant seeks in her application make it sufficiently clear who the allegations are made against. Accordingly, I do not consider that the respondents have been prejudiced by the technical infelicities of the applicant’s points of claim as drafted. I am satisfied that the applicant’s pleading substantially complies with the prescribed form and I will treat the applicant’s allegations of discrimination, sexual harassment, and victimisation as against each of the respondents and in respect of the appropriate prohibitions in the Act (except in respect of vicarious liability, which is pleaded against the first respondent only) as was clearly the applicant’s intention.

The Facts

The issues of fact arising from the pleadings are as follows. In her points of claim, the applicant claims the alleged assault by the second respondent occurred on 28 August, 2009 in the workplace. The pleading says that the second respondent “approached her from behind and touched her on the area of her buttocks”. Ms Browning witnessed the incident and the first respondent agrees. The applicant did not consent to the touching and the first respondent does not admit or deny that.
The applicant reported the incident to Mr Scott, one of her supervisors, on 31 August, 2009. The applicant claims that Mr Scott asked her to accept a verbal apology from the second respondent, which she refused. Mr Scott then reported the incident to Ms Roberts, a more senior supervisor. The first respondent accepts the time and sequence of events apart from the claim that Mr Scott “tried to convince the applicant to accept a verbal apology” which it denies.
The applicant made a “formal” complaint on 31 August, 2009 (which the first respondent accepts) pursuant to the first respondent’s harassment policy and thereafter she says she experienced abuse from co-workers, such as being called a “slut” and a “dobbing dog”. The first respondent does not admit or deny the abuse.
On the applicant’s case, her complaint was made on 31 August, 2009 and it was not addressed by the first respondent until 20 October, 2009. According to her, she was exposed to abuse by the second respondent during that period. The abuse was exacerbated by the proximity of their work stations as well the applicant having to relieve the second respondent at his station “daily”. She claims she was abused by other workers too. She claims nothing was done by the first respondent to curtail the abuse.
In contrast, the first respondent says the applicant was only required to relieve the second respondent on an “infrequent basis”—it denies that the relief was “daily”. The first respondent does not admit or deny the alleged abuse. The applicant claims she made “repeated” requests to Mr Scott concerning the progress of her complaint who continued to “try and convince the applicant to accept the apology, otherwise refusing to respond to these requests . . .”.
On 20 October, 2009 the applicant contacted the Australian Workers Union and informed Mr Scott of having done so. Mr Scott informed Ms Roberts who spoke to the second respondent who in turn admitted to the incident. Finally, on 27 October, 2009 the applicant made a (further, it seems) written complaint about the second respondent who received a written warning by the employer (although the applicant does not indicate when the written warning was issued).
In its defence, the first respondent pleads a different account of what happened during the 31 August, 2009 to 20 October, 2009 period. In short, the first respondent claims that after Mr Scott reported the incident to Ms Roberts, the latter spoke to the second respondent. There is no date given for that conversation in the defence. However, it is claimed that the second respondent told Ms Roberts he had already apologised to the applicant and that she had accepted his apology. The first respondent also notes that despite the daily contact with the second respondent between 31 August, 2009 and 20 October, 2009 as she claims below, the applicant did not express any dissatisfaction with the second respondent’s apology or the handling of her complaint to Mr Scott. The first respondent claims that the applicant asked Mr Scott about the progress of her complaint only once in early September, 2009. He referred her to Ms Roberts but the applicant did not take up the opportunity to speak to Ms Roberts. The first respondent says that upon receipt of the further written complaint on 27 October, 2009 Mr Johns (a manufacturing manager) conducted an investigation, issued the second respondent with a written warning on 29 October, 2009 and transferred him to a different part of the mill.
Despite the work roles being rearranged so as to keep the applicant and second respondent apart, the applicant claims that she was nevertheless obliged to relieve the second respondent at his work station daily. The first respondent denies that. She also had to relieve the third-respondent, an acquaintance of the second respondent. She claims, moreover, that at these changeovers the second and third respondents were want to verbally abuse and humiliate her. The first respondent accepts that the applicant was required to relieve the third respondent, but does not admit or deny the alleged abuse.
On 25 March, 2010 there was a particular incident between the applicant and third respondent. The applicant claims that the third-respondent fabricated an issue with the applicant’s work quality and referred it to management. The applicant approached the third respondent and she later received a written warning for abusive behaviour, she pleads. The written warning indicated that the applicant allegedly initiated a confrontation, which the respondent denies. The first respondent’s defence is that on 25 March, 2010 the third respondent complained about the applicant to Mr Johns, alleging that the applicant had abused him. Mr Johns interviewed the applicant, the third respondent, and several witnesses. The first respondent otherwise denies the applicant’s version of events. On the basis of those interviews, Mr Johns issued the applicant with the written warning on 30 March, 2010. The applicant claims that this was not due investigation. The applicant claims that in the five years of employment prior to the above incidents she had not received any other warnings. The first respondent admits that fact. She claims the workforce at large knew about her receipt of the warning before she herself had received it. The first respondent denies this.
The applicant makes a number of claims about the circumstances of her attendance at work. She pleads that on or around 3 March, 2010, her supervisor Mr Manuel began recording her attendance and continued until 29 October, 2010. She claims management singled her out as requiring surveillance. The first respondent denies that but admits that Mr Manual began monitoring punctuality and absenteeism of a number of employees with pre-existing poor attendance records.
There is significant disagreement about the circumstances surrounding the applicant being placed on a rotating shift in October, 2010. On 15 October, the applicant says she was informed by Mr Hansen that she would be placed on a rotating shift that included night hours. She had hitherto worked day shifts only and claims Mr Hansen said if she had had children she could have “won a day shift”.
On the first respondent’s version of events, a decision had previously been made by the company to close the “bottom mill” where the applicant had worked day shifts. This was announced to all affected employees on 30 September, 2010 at a meeting which the applicant did not attend. On 15 October, 2010 Mr Scott and Mr Hansen met with the applicant to discuss the closure and the rotating shift. The rotating shift arrangement, it seems, involved employees working either a fortnightly rotation between day and afternoon shifts, or a permanent night shift. The first respondent admits what Mr Hansen said about “winning a day shift”, but claims the comment was made out of context. The first respondent also admits that Mr Johns made a representation that he would try his best to get a day shift for the applicant.
The loss of a permanent day shift was an issue for the applicant for two reasons. First, the applicant’s mother had leukaemia and required care at night. The first respondent admits it knew about the mother’s condition at the commencement of the applicant’s employment, but does not admit it knew that the applicant cared for her mother at night. Second, the applicant cycled to and from work and had concerns about her safety cycling after dark. The first respondent acknowledges that this was brought up in the meeting between Mr Scott, Mr Hanson, and the applicant.
The applicant claims that the shift change was a demotion by the first respondent that it knew would cause her to be unsafe in her commute and difficult to manage the care of her mother. The first respondent denies that characterisation of the shift change and says the transfer was due to a closure of the bottom mill. The first respondent notes that it consulted extensively with the applicant about the shift change and that it complied with the relevant industrial instrument in respect of the change.
The applicant’s mother’s health caused one specific incident at work when she had to attend hospital for her mother’s surgery on 2 November, 2010. She claims that she presented a medical certificate the next day to excuse her absence but that it was refused. The first respondent says several things in defence. First, it notes that 2 November, 2010 was Melbourne Cup day and a number of employees failed to attend work (although it denies that the applicant was told it was believed she had been at a race meeting, as the applicant claims). Second, Mr Hansen spoke to all of these employees, including the applicant. Third, the applicant informed Mr Hansen of the reason for her absence, which Mr Hansen accepted without requiring the medical certificate.
On 8 November, 2010 the applicant claims she discovered that casual staff has been engaged for day shift work in her previous position. The first respondent denies this. She arranged to meet with Mr Johns, but ultimately met with Mr Hansen on a later date instead who told her the day shift was being increased from four to six staff but that she would not be considered as they needed someone reliable. The first respondent admits this. The applicant claims Mr Hansen called her unreliable due to her having to care for her mother and attend medical procedures and that a review of her recent absenteeism indicated she was a liability. The applicant also claims when she began to cry at the meeting, Mr Hansen said “stop crying, you stupid little girl”. The first respondent denies this was said and pleads that Mr Hansen called her unreliable due to her poor attendance but otherwise denies the claim. According to the first respondent, Mr Hansen also indicated that graders needed to work in pairs (this is relevant, the evidence suggests, because if one grader is late or absent, the other grader cannot commence work).
The applicant claims that on 17 November, 2010 following the above meeting, she met with her general practitioner and was diagnosed with an anxiety disorder and referred to a psychologist. She claims she has been unable to work since that date. The first respondent claims, on the other hand, that the applicant did not attend work following 10 November, 2010; although, it admits that the applicant presented a worker’s compensation certificate dated 17 November, 2010 stating that she suffered from severe anxiety disorder. The applicant claims she expressed suicide ideation to Ms Beardmore as a result of her treatment after making the complaint about the second respondent. The first respondent does not admit or deny the applicant’s expression of suicide to Ms Beardmore.
Accordingly, the facts in dispute are:
a)Whether the applicant experienced abuse from the second respondent, third respondent, or any other co-workers after her initial complaint;
b)If so, whether the first respondent, through its agents or otherwise, did anything to curtail that abuse;
c)Whether there was an attempt to coerce the applicant into accepting the second respondent’s apology;
d)Whether the applicant was required to relieve the second respondent at his station on a daily or infrequent basis both before and after Mr Johns’ investigation;
e)Whether the first respondent delayed in addressing the applicant’s complaint, and in particular, the extent of any delay by Ms Roberts in consulting the second respondent about the incident;
f)The extent to which the applicant sought updates on or expressed dissatisfaction with the progress of her complaint from Mr Scott or Ms Roberts and how Mr Scott responded;
g)Whether the third respondent fabricated a complaint about the applicant’s work;
h)Whether the applicant initiated the confrontation with the third respondent and whether she was the aggressor;
i)Whether the workforce at large knew about the warning issued to the applicant before she herself knew;
j)Whether the applicant was singled out by the first respondent as requiring surveillance;
k)Whether the first respondent accused the applicant of being at a race meeting on 2 November 2010 and whether Mr Scott refused her medical certificate;
l)Whether the applicant’s transfer to the rotating shift was a demotion or scheme to cause her to be unsafe in her commute and make it difficult for her to care for her mother;
m)Whether Mr Hansen told the applicant words to the effect that she was unreliable due to her having to care for her mother and that her absenteeism indicated she was a liability; and
n)Whether Mr Hansen said to the applicant words to the effect “stop crying, you stupid little girl”.

The course I have adopted is to make the appropriate findings of fact with respect to these issues as and when they arise in relation to the legal tests set out below.

Sex discrimination

The legislation and authorities set out the questions of law relevant to these proceedings. Section 14(2) of the Act provides that:
It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
It should be observed that s.14(2) applies only to employers, not employees. The applicant’s statement of claim pleads breaches of s.14(2) by the second and third respondents. The actions of those two respondents, then, is only relevant in terms of the potential vicarious liability of the first respondent.
Before asking whether the first respondent discriminated against the applicant on the ground of sex in terms of employment conditions, opportunities or benefits, dismissal, or other detriment it is appropriate to first ask a preliminary question: what is discrimination on the ground of sex? Section 5 of the Act provides that:
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
As I outlined above, subsections (1) and (2) refer to direct and indirect discrimination respectively.
Section 5(1), on which the applicant relies in her points of claim, requires a comparison to be made. The first respondent referred me to Purvis v State of New South Wales (2003) 202 ALR 133 (“Purvis”) on this point. That decision of the High Court considered the Disability Discrimination Act 1992, which is said by the first respondent to be in similar terms to the Sex Discrimination Act 1984. Section 5(1) of the Disability Discrimination Act 1992 provided that:
For the purposes of this Act, a person (‘discriminator’) discriminates against another person (‘aggrieved person’) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
I accept the similarity between this section and s.5(1) of the Sex Discrimination Act 1984. Indeed, most of the anti-discrimination statutes of this country define direct discrimination in terms that are substantially similar (see, e.g., s.14 of the Age Discrimination Act 2004). Purvis is important because the High Court defined the boundaries of the phrase “in circumstances that are the same or are not materially different” as it appears in the legislation. That case involved a schoolboy who had a propensity to act violently towards his teachers and peers due to an underlying disability. The boy was expelled from school and brought an action for direct discrimination. The issue for the High Court was whether the comparator in s.5 of the Disability Discrimination Act 1992 was another student without the disability but who engaged in violent behaviour or merely another student without the disability. Gummow, Hayne and Heydon JJ held at [225] that the circumstances included:
[t]he fact that [the boy] had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils.
Callinan J agreed with the joint-majority’s construction of the legislation in relation to direct discrimination (McHugh and Kirby JJ dissented). Accordingly, the first respondent submits that the comparator relevant to the present determination is a male employee who hypothetically was involved in the same circumstances and engaged in the same conduct as the applicant. I agree with this approach.
Although I have some difficulties with the applicant’s written submissions on this point, in essence they seem to advocate the same approach: that is, the relevant comparison is between the applicant and a hypothetical male employee in the same circumstances as the applicant. One issue I have with the applicant’s written submissions, for example, is the statement that “[i]t is unlikely in the extreme that male members of the workforce would have been sexually harassed and therefore in need of making a complaint”. That claim denies the premise of the exercise, which is to imagine that a male had in fact been sexually harassed and made a complaint. There are other similar points made in the written submissions that I have not addressed due to relevance. The applicant also suggests I should consider the second and third respondents as comparators as part of the exercise. However, the applicant has not explained how such an exercise is reconcilable with the approach the High Court has adopted in Purvis. Nor am I persuaded that on the evidence the second and third respondent were involved in circumstances that were materially similar to the applicant’s.
Pursuant to ss.5(1) and 14(2) of the Act, then, I must consider how the evidence addresses the following questions:
a)was the applicant treated less favourably by the respondents than they treated or would have treated a male in the applicant’s circumstances (or circumstances not materially different)?
b)was the less favourable treatment committed by reason of the applicant being female (or a characteristic generally pertaining or generally imputed to females)?
c)did the discrimination involve any of the situations in s.14(2)(a)-(d) (i.e. was it discrimination in terms of employment conditions, opportunities or benefits, dismissal, or other detriment)?
It is important to note that a resolution of the facts in dispute may not necessarily answer these questions. That is because the evidence from both sides goes largely towards how the first respondent treated a single employee, the applicant. Unfortunately, such facts do not directly assist the Court in considering how the first respondent might have treated other employees in similar circumstances. Commentators have noted the practical difficulties of the “differential treatment” inquiry that direct discrimination provisions such as s.5(1) of the Act require courts to adopt. In Australian Anti-Discrimination Law,[1] the authors write:
Because it is quite rare in practice to locate an actual person who may serve as a ‘comparator’ to the complainant, courts and tribunals are often required to engage in the artificial exercise of seeking to determine, on the basis of the evidence presented by the parties, how the respondent would have treated a hypothetical, or notional, person who possessed all of the complainant’s attributes, other than the attribute claimed to be on the ground of discrimination, in comparable circumstances.
[1] Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, 2^nd Ed., The Federation Press 2015 at page 80

Was the applicant treated less favourably than a male in her circumstances?

Regarding the allegations of abuse experienced by the applicant upon making the initial complaint, the applicant’s evidence is directed more towards whether that abuse actually occurred as opposed to whether it would have occurred in respect of a male employee in the applicant’s circumstances. On the other hand, the respondent’s evidence is directed more towards whether the first respondent had knowledge of any abuse experienced by the applicant. Neither views of the evidence are of assistance. Similarly, it is unhelpful to argue that a male employee would not have been slapped on the buttocks in the first place, thereby neither complaining nor experiencing abuse for having complained, because as I stated above, such reasoning denies the hypothetical premise of the statutory test.
Ultimately, however, I am of the view that the evidence is insufficient to prove that a male would have experienced abuse if he made a complaint in the same circumstances as the applicant. There is simply no direct evidence about how the first respondent and employees of the first respondent act, or would have acted, in circumstances where there has been such a complaint. That the first respondent conducted a training program for employees that covered sexual harassment in the workplace is indirect and insufficient. Accordingly, I make no findings at this stage as to whether or not the alleged abuse in fact occurred.
I take a similar view of the following issues: whether there was an attempt to coerce the applicant into accepting an apology, whether the applicant was required to relieve the second respondent at his station, whether the first respondent delayed in addressing the applicant’s complaint, whether the third respondent fabricated a complaint about the applicant’s work, whether the workforce at large knew about the applicant’s warning before she did, and whether the applicant was singled out for surveillance. The evidence does not go to how a male may have been treated, but how the applicant was treated. It cannot be established that applicant received less favourable treatment than a male employee would have received, nor that any treatment occurred because the applicant was a woman.
The applicant alleges that the first respondent accused her of being at a race meeting on 2 November, 2010 (Melbourne Cup Day). Mr Hansen deposes in his affidavit filed on 9 February, 2012 that he accepted the applicant was not at a race meeting. He also deposes that all 5 employees absent on 2 November, 2010 were interviewed regarding the reason for their absence. Mr Hansen was questioned about this during cross-examination. His answers did not, in my opinion, dislodge those depositions and I accept his evidence. There is no evidence that those 5 absent employees were all female. Accordingly, even if I accepted the applicant was accused of being at a race meeting on 2 November, 2010, I do not accept that male employee would not have been similarly accused.
Of the remaining facts in dispute relevant to sexual discrimination, there is the issue of whether Mr Hansen said to the applicant words to the effect “stop crying you stupid little girl”. In his affidavit, Mr Hansen denies saying those words. He flatly denied it in cross-examination too. In my view, it is entirely possible that Mr Hansen “lost his patience”, as counsel for the applicant put it, with her during this meeting. He admitted that he was very busy at the time of this meeting and, on his own evidence, “did not see any point in continuing the conversation”. Mr Hansen probably lost his patience with the applicant, in my view; however, I am not satisfied that he said the specific words “stupid little girl”. I am not satisfied that the applicant was treated differently on the ground of sex, because there is no evidence that Mr Hansen would not have lost his patience with a male employee in the same circumstances.

Was the less favourable treatment committed by reason of the applicant being female?

I am not persuaded that the applicant was treated less favourably because she was a female.

Did the discrimination involve any of the situations in s.14(2)(a)-(d)?

For the sake of argument, if findings were made that the applicant was in fact discriminated against, such discrimination would clearly fall under s.14(2) of the Act. For example, if the applicant had experienced discriminatory abuse that was left uncurtailed by management due to her being female, there would be “detriment” under s.14(2)(b).

Conclusion

I conclude that the first respondent has not breached s.14 of the Act by engaging in sex discrimination against the applicant and I accordingly refuse to make relevant declarations and orders sought by the applicant in respect of that allegation.

Discrimination on the ground of family responsibility

Was the applicant discriminated against by the first respondent on the ground of her family responsibilities? The relevant section is s.14(3A). I was troubled by how the parties addressed this section, which provides:
It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.
(my emphasis)
What is the meaning of “dismissing”? As far as I can tell, neither party addressed me on that. This is troubling because, in so far as it is relevant to these proceedings, the applicant’s employment was never terminated; therefore, if the applicant’s argument is to succeed, the meaning of “dismissing” must encompass the applicant’s transfer from the bottom mill to the top mill. I cannot see any other way in which the applicant has been “dismissed” on the evidence. The meaning of “dismissing” is not defined in the Act. The Macquarie Dictionary defines “dismiss” in the employment sense as “to discharge or remove, as from office or service”. The applicant has not been discharged or removed from service. She has been transferred to another position by her employer. In my opinion, if s.14(3A) was meant to encompass circumstances other than discharging or removing an employee from service, it would have been drafted in a similar way as ss.14(1) and (2), which include circumstances involving the terms or conditions of employment, promotion, transfers, training, and other detriment, etc. Therefore, I find that the applicant’s case does not fall within the meaning of s.14(3A). The section does not apply and I decline to find that the first respondent has breached it.
However, if I am wrong about this, the applicant nevertheless cannot succeed in her allegation that s.14(3A) has been breached for the following reasons.
The first step in assessing whether there has been a breach of that section is to consider the meaning of “family responsibilities”. This phrase is defined by s.4A(1) of the Act:
In this Act, family responsibilities, in relation to an employee, means responsibilities of the employee to care for or support:
(a) a dependent child of the employee; or
(b) any other immediate family member who is in need of care and support.
(emphasis in original)
The applicant’s evidence is that her family responsibilities involved caring for her mother. In her affidavit, she deposes that she cared for her mother in the evenings, that her mother had an illness and that this illness required medical operation. The respondents do not cavil with these facts, however they submit that the applicant’s evidence does very little to elucidate the nature and extent of those facts. The applicant also relied on evidence in Dr Matheson’s affidavit that she has a younger brother who also lived in the home with her mother, that she has an older half-sister and that the applicant at some stage moved out of her mother’s home to live with a boyfriend. In respect of this evidence, however, the respondents submit that there is no evidence concerning the extent to which the applicant cared for her younger brother and/or half-sister, if at all. The Court was not taken to any medical evidence in relation to the mother’s illness. Nevertheless, I am satisfied that the applicant had family responsibilities within the meaning of s.4A(1) of the Act in respect of her mother. Whatever the extent of the mother’s illness, it is not in dispute that the applicant had to attend the mother’s operation on at least one occasion. It is also not in dispute that the mother had an illness. I infer from these two facts that the applicant had responsibilities to care for or support the mother who, due to an illness, was in need of care and support. This accords with the definition of “family responsibilities” in the Act. I am not satisfied that the applicant had family responsibilities in respect of her siblings.
The second step in assessing whether there has been a breach of s.14(3A) is to ask whether there has been discrimination on the ground of the applicant’s family responsibilities. The phrase “discrimination on the ground of family responsibilities” is defined in s.7A of the Act. Section 7A provides:
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:
(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
(b) the less favourable treatment is by reason of:
(i) the family responsibilities of the employee; or
(ii) a characteristic that appertains generally to persons with family responsibilities; or
(iii) a characteristic that is generally imputed to persons with family responsibilities.
This section again raises the differential treatment test established by the High Court in Purvis. Hence the appropriate inquiry is whether the applicant was treated less favourably by the respondents than they treated or would have treated another employee without the applicant’s family responsibilities (who was otherwise in the applicant’s circumstances or circumstances not materially different).
The applicant argues that the first respondent treated her less favourably by reason of her family responsibilities by:
a)monitoring her work attendance for lateness;
b)putting her on a night shift; and
c)transferring her from the day shift at the bottom mill.
She claims that her work attendance was affected by having to care for her mother and this was known to the first respondent. She claims that the first respondent knew a nightshift was unfavourable to her as she had to care for her mother in the evenings specifically. She also claims that she was not considered for a day shift (at the top mill) due to the aforementioned issues with her lateness/attendance.
In their defence, the first and third respondents claim that in relation to the monitoring of the applicant’s attendance, a number of employees were being monitored in addition to the applicant during this time. There are performance notes in evidence concerning the applicant’s attendance, but not for any other employees.
The first and third respondents also submit that upon the closure of the bottom mill, all relevant employees were moved to the top mill where the prevailing roster was a fortnightly roster rotating between day and afternoon shift start times. I note that the applicant claims there was in fact day-shifts at the top mill and she was told by Mr Hansen that if she had had children she would have been considered for the day shift for that reason. The first respondent admits Mr Hansen said words to that effect and gave evidence that the day-shift was awarded to employees on a merits basis. In his affidavit, Mr Hansen says that the day-shifts were only awarded to employees with requisite skills and those with good attendance records.

The respondents also emphasised in submissions that the applicant has only pleaded direct discrimination, presumably in an attempt to preclude a finding of indirect discrimination, which on the evidence, may have been somewhat easier for the applicant to make out. However, the respondent’s emphasis is unimportant in my view, as s.7A of the Act does not provide for indirect discrimination (see, e.g., ss.5(2), 6(2), or 7(2) by contrast).
The difficulty I have with the applicant’s arguments is the same difficulty I had with her sex discrimination argument. That is, her argument focuses on what did or did not happen to her without giving the same focus to facts that would go towards answering the differential treatment inquiry. In other words, whether the first respondent treated the applicant unfavourably due to her family responsibilities is only of as much assistance to the Court as it is comparable with how the first respondent treated or might have treated an employee without those responsibilities.
Similarly, I have difficulty with the respondents’ arguments. In relation to the monitoring of attendance and transfer from the bottom mill, the respondents’ submissions and the evidence relied on focuses on the fact that other employees were subject to the same treatment. I presume the inference the respondents want me to draw from this is that there could be no discrimination on the ground of the applicant’s family responsibilities, given that the monitoring and transfers were of general application among employees. However, the respondents have not provided direct evidence that employees other than the respondent were monitored for attendance. They have provided a record of the applicant’s performance only. Moreover, the respondents have not provided evidence that employees were transferred from the bottom mill to the rotation shift at the top mill generally—in fact, they admit that Mr Hansen told the applicant that employees with children were more likely to be transferred to a day shift at the top mill. That shows some discernment between the transferred employees at the very least.
I have come to the conclusion that, even if s.14(3A) were to apply to the present case, the first respondent would not have breached it because—despite deficiencies in the first respondent’s evidence—I am not satisfied that the causal element of s.14(3A)(b) is made out. That is, there is very little in this case to persuade me that the first respondent would have treated an employee without the applicant’s family responsibilities differently. That employees with children may have been given preference for day shifts at the top mill does not imply that employees without the applicant’s particular family responsibilities (i.e. caring for an ill mother) would have also been given this preference. That would be illogical. Moreover, although I have some difficulties with Mr Hansen’s evidence concerning the monitoring of the applicant’s performance (which I deal with below), none of these difficulties persuade me that an employee without the applicant’s family responsibilities would not have been similarly monitored in the same circumstances as the applicant.

Victimisation

The prohibition against victimisation in the Act protects persons in circumstances that involve the Sex Discrimination Act 1984 or the Australian Human Rights Commission Act 1986 in some way. For example, it protects persons who make or propose to make complaints under one of those Acts. The prohibition is relevant, the applicant would say, because of her complaints about the incident between herself and the second respondent on 28 August, 2009.
The prohibition is contained in s.94(1) of the Act. Section s.94(2) provides when victimisation is taken to occur:
For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
I must first consider whether s.94 in fact applies to the present case. The applicant seeks orders that each of the respondents have breached s.94. Indeed, s.94(1) makes it clear that the prohibition applies to both natural persons and corporations. The section will apply if the applicant has been subject to detriment by any of the respondents and whether that occurred due to the applicant having done any of the acts or things referred to in s.94(2)(a)-(g) (or because the respondent believed the applicant had done or proposed to do such act or thing). I note that the submissions of the first and third respondent seem to suggest that s.94(2)(g) is the only applicable subsection. There is some merit to that view.

Did the applicant do (or propose to do) any of the acts or things referred to in paragraphs (a) to (g)?

The applicant pleads that she lodged a “formal” complaint about the incident with the second respondent and a further written complaint (in accordance with the first respondent’s policy) as well. I have not seen direct evidence of the content of these complaints; however, the first and third respondent accepts that the complaints were made. The immediate difficulty is that, without evidence of the contents of the applicant’s complaint, the Court cannot easily know whether that complaint amounted to an act or thing referred to in paragraphs (a) to (g). For example, did the applicant’s written complaint allege that the third respondent’s action amounted to an unlawful Act by reason of a provision of Part II of the Act (i.e. s.94(2)(g))? Nor does the evidence of the applicant’s communications with Mr Mills, the Australian Workers’ Union official, shed light on this matter.
I am satisfied, however, that the applicant has done an act referred to in s.94(2)(g). I infer that by way of her complaints about the second respondent, the applicant was alleging that he had committed an act that, by reason of the Sex Discrimination Act 1984, was unlawful. Importantly, none of the paragraphs in s.94(2) seem to require an applicant to communicate anything to a respondent to satisfy one of the descriptions in paragraphs (a) to (g). In my view, the wording and necessary implication of s.94(2) is that a respondent merely has knowledge that an applicant has done an act or thing referred to in paragraphs (a) to (g) (or a belief that an applicant has done so). The inquiry for the Court as to whether s.94(2)(g) is made out, then, is whether the respondents had knowledge or believed that the applicant’s complaints involved or amounted to an allegation of unlawful sexual harassment. I infer from the interview notes and incident reports annexed to Mr Johns affidavit that the words “sexual harassment” were used during the course of the applicant’s complaints. There is evidence that the second and third respondents were aware of the nature of the applicant’s complaints as well. In this context, I am satisfied that the respondents had the requisite knowledge.

Was the applicant subject to detriment on the ground of an act or thing referred to in paragraphs (a) to (g)?

For s.94 to apply in this case, the applicant must not only have suffered detriment at the hands of the respondents, but must have suffered it on the ground that she made an allegation of unlawful sexual harassment. In other words, there is a causation element to the offence.
The evidence suggests that the circumstances in which the applicant’s attendance and performance were monitored by the first respondent’s managers. Mr Hansen swears that:
Punctuality and attendance were significants [sic] concern for the business (in relation to [the applicant] as well as a few other individuals at the time) and I was concerned that the Supervisors and Leading Hands in the Bottom Mill struggled to manage employee attendance and other day-to-day performance issues prior to early 2010 with employees effectively. From early 2010 one of the Leading Hands, Chris Manuel, kept detailed notes of performance issues relating to each employee, including each occasion where an employee was late for work, did not attending for work at all, or where leave was taken, and the reason (if any) provided for each absence.
Mr Hansen’s affidavit also annexes a copy of the performance notes relating to the applicant for the period March, 2010 – October, 2010. Those notes were prepared by Mr Manuel, who reported to Mr Hansen at the time.
No other performance notes relating to “a few other individuals” made it into evidence. Mr Hansen was pressed about this in cross-examination. The witness had difficulty answering a number of counsel’s questions, particularly when asked when exactly he became aware of employee attendance issues at large and why Mr Manuel began keeping the performance notes. On the one hand, Mr Hansen deposes that he was aware of employee attendance and performance issues as of early 2010; on the other hand, however, he claimed in oral evidence that he was unaware of Mr Manuel’s seemingly unilateral decision to begin keeping performance records until a later time. Mr Hansen had noticeable difficulty reconciling the coincidence that he was aware of the relevant issues but did not have communication with Mr Manuel about addressing or monitoring those issues. He claimed that Mr Manuel and the group of employees to which the applicant belonged were not under his supervision in early 2010. Mr Hansen also struggled to answer counsel’s query as to whether an employee’s attendance and performance would begin to be monitored absent a prior history of attendance and performance issues. Mr Hansen agreed with counsel’s question: “So any employee at any time can be subject to this random surveillance?” When pressed about this further, the witness seemed to suggest that this somewhat unusual outcome was the product of the company’s thorough time-keeping. However, counsel drew Mr Hansen’s attention to the fact that, at least in respect of the notes recorded about the applicant’s attendance, a number of the comments Mr Manuel made had nothing to do with timing, but were more generalised performance criticism. The inference counsel sought to draw with this line of questioning, perhaps, was that it was no coincidence that the applicant began to be monitored by Mr Manuel as of early 2010 subsequent to her complaints in late 2009.
Mr Johns was also cross-examined on this issue. He agreed with counsel’s proposition that an employee would only be monitored at a point where it had been identified that there was a pre-existing problem.
The applicant argues that the surveillance of her was connected to her and happened because of her sexual harassment complaint. However, there are other explanations available on the evidence apart from that offered by Mr Hansen. One explanation is that the applicant did in fact have issues with her attendance and performance and displayed a history of such. The respondents did not submit that the applicant had a history of poor attendance or performance. But there is some evidence about the applicant’s performance and attendance prior to March, 2010 when the monitoring began. I have also considered whether the applicant was merely identified by management of the first respondent as a problematic employee in general, apart from specifically having made the sexual harassment allegation. Reasons for this may have been due to the somewhat evidently tense situation between the applicant and management concerning her transfer to the top mill, as well as the incident between the applicant and the third respondent resulting in the issue of a written warning. However, both of these events occurred after the commencement of Mr Manuel’s monitoring of the applicant. The first entry in the performance record is 3 March, 2010. The incident between the applicant and third respondent occurred on 25 March, 2010. Moreover, the meetings between the applicant, Mr Hansen, and other management staff did not occur until October, 2010. This is plainly not an explanation for the surveillance of the applicant’s attendance.
The applicant bears to onus of proof. The competing possibilities are equally open. I am not satisfied that the first respondent undertook the surveillance activities because the applicant made a sexual harassment claim.
The other facts in dispute relevant to the victimisation claim are the nature and extent of the delay by the first respondent managers in addressing the applicant’s initial complaint, the third respondent’s complaint about the applicant’s work (and the written warning the applicant subsequently received), whether the applicant experienced abuse by fellow employees at large, and the applicant not being given a day-shift upon her transfer to the top-mill. I will address each of these in turn.
While the first and third respondents cavil with the reasons for the delay in responding to the applicant’s initial complaint, they generally accept that the delay occurred. I find that there was a delay. This was detrimental to the applicant given that she had to remain working with the second respondent until the complaint was eventually addressed. However, the evidence as to a casual link between this detriment and the applicant having made a complaint (and thereby engaging in action within the meaning of s.94(2)(g)) is ambiguous at best. My view of the evidence is that bureaucratic inefficiency or incompetence on the part of Mr Scott and Mrs Roberts are just as likely to be the reason for the delay as some intent to victimise the applicant. Accordingly, I decline to find that the delay amounted to a breach of s.94 of the Act.
The applicant pleads that she was subject to “unchecked victimisation by supervisors and staff” upon making the initial sexual harassment complaint. As the first and third respondent point out, however, she does not plead or particularise the supervisors and staff said to have subjected her to victimisation, nor pleaded or particularised the acts said to amount to victimisation. The evidence on the applicant’s case that might relate to this claim, if I were to make certain inferences, is similarly vague. The applicant’s case is deficient in this respect and I am not persuaded on the balance of probabilities that she was subject to unchecked victimisation by supervisors and staff upon making the initial sexual harassment complaint.
The applicant pleads that her being taken off the day-shift in late 2010 amounted to victimisation. The first respondent submits that the primary reason for this was because the bottom-mill was permanently closed down, so that a number of employees besides the applicant were transferred from day-shifts to the rotating shifts at the top mill. The first respondent says that, despite there being day-shift opportunities at the top-mill, the applicant was not given a day-shift due to her poor attendance—they say that day-shift employees at the top-mill were required to work in pairs, so that if one of the employees was late, the other employee could not commence work. While I have already expressed my concerns with respect to the surveillance of the applicant’s attendance and performance during this time period, I nevertheless find that the closure of the bottom-mill and the attendant transfer of employees generally precludes a finding that the applicant was victimised by being denied a permanent day-shift for having made a sexual harassment allegation.
Finally, I have considered whether the third-respondent’s complaint about the applicant’s work amounts to victimisation. The applicant’s argument concerning the so-called fabricated complaint incident is that the third respondent fabricated a defect with her work as retribution for the complaint made against the second respondent. The applicant paid considerable attention to highlighting a familiar relationship between the second and third respondents. In other words, it is the applicant’s case that the third respondent fabricated the complaint about the quality of the applicant’s work as retribution for her having made a sexual harassment allegation against his friend. It is the respondents’ case that, whatever the circumstances of the complaint, there is ultimately no causal link between the third respondent’s complaint and the applicant’s sexual harassment allegation made 7 months prior. The respondents submit that, despite extensive cross-examination, the third respondent refused to admit that there was any causal link or motivating factor between the events.
In my view, the causal link is indeed lacking, although not for the reason proffered by the respondents. The applicant was correct to focus on the relationship between the second and third respondents; however, it seems to me that the highest this point can be taken on the available evidence is that, even if the third respondent fabricated the complaint as a form retribution on behalf of the second respondent, there is nothing to prove his motivation was based on the applicant having made a sexual harassment allegation in particular. If that line of reasoning is accepted, the highest it can be taken is in fact that the third respondent was motivated merely by the applicant having made a complaint about his friend. The applicant could have complained to management that the second respondent swore at her, for example, and the third respondent would have engaged in the same retributive behaviour. It is not victimisation within the meaning of s.94(2)(g) to inflict detriment on a person merely because they have made a complaint or allegation—the detriment must have been inflicted specifically because that person as made an allegation of sexual harassment. The only evidence that the third respondent’s actions were due to there being an allegation of sexual harassment in particular is his lamentation that the second respondent was punished by having to “go home and tell his family” about the incident. One could argue, thus, that the third respondent was lamenting the second respondent having to tell his family about an incident of a sexual nature in particular. However, one can conceive of many types complaints that could be made against an employee the subject matter of which it would be undesirable or uncomfortable to tell one’s family.

Conclusion

For the above reasons, I am not satisfied that the first respondent has breached s.94 of the Act.

Sexual harassment

The incident whereby the second respondent touched the applicant’s buttocks is the basis for the sexual harassment allegation. The second respondent has not participated in the proceedings. However, the first respondent has defended the point given that the applicant alleges that the first respondent is vicariously liable for his actions.

“Sexual harassment” is defined by the Act in s.28A:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
It is then prohibited by s.28B. The relevant subsection is s.28B(2), which prohibits sexual harassment between fellow employees:
It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
The first respondent admits that the second respondent “touched the Applicant in the area of her buttocks”. The first respondent’s argument concerning the incident focused not on whether the incident in fact occurred, but the severity of the touching and the immediate response by management thereafter. The first respondent took me through evidence which, it says, demonstrates that the applicant has escalated the severity of her description of the touching over time. I was invited to consider the applicant’s credit in this regard. The severity of the touching, however, is relevant to whether the touching was of a sexual nature; however, I am satisfied that even at its lowest, the touching was of an unwanted sexual nature. The applicant’s credit is neither here nor there. When one adult intentionally touches another adult on the buttocks, regardless of whether it is a light slap or a distinct grope, this is generally and reasonably understood to be of a sexual nature.
Finally, as is clear from ss.28A and 28B, the subsequent actions of the first respondent’s management are irrelevant to whether the second respondent’s conduct amounted to a breach. It is again neither here nor there.
I conclude that the second respondent breached s.28B(2) of the Act.

Vicarious liability

The vicarious liability regime established by s.106 of the Act applies to breaches falling under Part II of the Act. That includes sexual harassment, discrimination on the ground of sex, and discrimination on the ground of family responsibilities. It does not include victimisation, which falls under Part IV of the Act. The issue of vicarious liability is of considerable practical significance to the applicant, given that she only seeks damages from the first respondent. It is made particularly significant given my finding that the second respondent has breached s.28B(2) of the Act.
The first respondent argues that it is not liable for any sex discrimination nor sexual harassment engaged by the second or third respondents, if the Court were to find such. Pursuant to s.106(2), the first respondent would not be liable for the second respondent’s breach of s.28B(2) if the Court finds that it “took all reasonable steps to prevent the employee or agent from doings acts of the kind referred to in [s.106(2)]. The primary basis for the defence is that the first respondent promulgated a so-called “Working With Respect” policy (“the policy”) amongst its workforce. Annexed to Mr John’s affidavit is what appears to be a slideshow used in a training session for employees. The slideshow discusses bullying and sexual harassment. It does not discuss discrimination at all. The notes on sexual harassment, however, are substantial and align with the definition in s.28A. There is also an employee attendance record at the end of the document.
As the first respondent points out, the evidence is that all of the first respondent’s employees who gave evidence were aware of the policy, as indeed was the applicant. Furthermore, the evidence is that the second respondent in particular attended the relevant training.
The first respondent also argued that its conduct in handling the complaints by the applicant about the sexual harassment incident as well as its handling of the complaint by the third respondent against the applicant showed that the first respondent had an adequate system of investigation and disciplinary in regards to complaints concerning such matters. I find this argument entirely unconvincing, not least because of the first respondent’s admitted delays in conducting an investigation into the applicant’s complaint, but because such examples are not only retrospective in nature, but too singular to convince me of the existence of such a system.
Nevertheless, I decline to find that the first respondent is vicariously liable for the sexual harassment perpetrated by the second respondent. I find that, by developing the policy and conducting training sessions, the first respondent took all reasonable steps to prevent that act occurring. While I am not satisfied that this defence would cover an employee’s breach of the discrimination prohibitions of the Act, I have already declined to find that the second or third respondents engaged in discrimination against the applicant and so the point is ultimately moot.

Conclusion

The applicant fails to establish her case against the first and third respondents. Her application against them must be dismissed.
The applicant’s claim against the second respondent succeeds. He did not appear in this proceeding. The applicant has not proposed any orders against the second respondent.
The application should be stood over for the making of orders consistent with these reasons upon the production of a draft order by the applicant for that purpose.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 November 2018.

Date: 23 November 2018

[2018] FCCA 3932

23 November 2018

Key Legal Topics

Areas of Law

Contract Law

Negligence & Tort

Legal Concepts

Breach

Causation

Damages

Duty of Care

Negligence