Weir v Telstra Corporation Limited - [2022] FCA 969

FEDERAL COURT OF AUSTRALIA
Weir v Telstra Corporation Limited [2022] FCA 969

File number: QUD 449 of 2021

Judgment of: LOGAN J

Date of judgment: 19 August 2022

Catchwords:
HUMAN RIGHTS – application for leave under s 46PO(3A)(a) Australian Human Rights Commission Act 1986 (Cth) – principles applicable to grant of leave – held: a case without reasonable prospect of success would not warrant a grant of leave under s 46PO(3A)(a)

HUMAN RIGHTS – sexual harassment – sexual harassment in the course providing goods, services and facilities and performing a function or excising a power under a Commonwealth law or for the purposes of a Commonwealth program – meaning of “person” – where relevant person must provide goods, services or facilities or perform a function or exercise a power in relation to the person harassed – where harassment occurred in the context of a dispute between neighbours – where goods, services or relevant Commonwealth law or program was provided by Telstra – held: harassment was not in the course of providing goods or services or performing functions under a Commonwealth law or power

Legislation:
Acts Interpretation Act 1901 (Cth) ss 2C, 15AA

Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 49PH

Human Rights Legislation Amendment Act 2017 (Cth)

Migration Act 1958 (Cth) s 477A(2)

Sex Discrimination Act 1984 (Cth) ss 3, 28A, 28G, 28L, 105, 106

Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 9

Telstra Corporation Act 1991 (Cth) s 8CM

Federal Court Rules 2011 (Cth) r 26.01

Equal Opportunity Act 1984 (WA)

Interpretation Act 1984 (WA) s 18

Cases cited:
AB v Western Australia (2011) 244 CLR 390

Budini v Sunnyfield [2019] FCA 2164

Bugge v Brown (1919) 26 CLR 110

Comcare v PVYM (2013) 250 CLR 246

General Steel Industries Ltd v Commissioner for Railways(NSW) (1964) 112 CLR 115

Harris v Bryce (1993) 41 FCR 388

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

Hough v Caboolture Shire Council (1992) 39 FCR 514

IW v The City of Perth (1997) 191 CLR 1

James v WorkPower Inc [2018] FCA 2083

Leach v Burston [2022] FCA 87

Praljak v Department of Defence [2021] FCA 1668

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Salomon v A Salomon and Co Ltd [1897] AC 22

Stock Health Service Pty Ltd v Brebner (1964) 112 CLR 113

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28

Vaughan v Legal Services Board (2009) 25 VR 536

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 57

Date of hearing: 13 July 2022

Counsel for the Applicants: Mr D Pritchard SC with Mr S Reidy

Solicitor for the Applicants: Harmers Workplace Lawyers

Counsel for the First Respondent: Mr M Follett

Solicitor for the First Respondent: Seyfarth Shaw

Counsel for the Second Respondent: The second respondent did not appear

Table of Corrections

19 August 2022 At paragraph 22 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Weir v Telstra Corporation Limited 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: [2022] FCA 969
Decision Date: 19 August 2022

CaseChat Overview and Summary

The matter before the court involved an application by Mr and Mrs Weir for leave to institute proceedings against Mr Bose and Telstra Corporation Limited under section 46PO of the Australian Human Rights Commission Act 1986 (Cth). The dispute arose out of allegations of sexual harassment by Mr Bose against Mrs Weir, which occurred in the context of a dispute between the parties as neighbours. The applicants sought to hold Telstra liable for the harassment, arguing it occurred in the course of Telstra providing goods, services, or facilities, or performing a function under a Commonwealth law or power.

The primary legal issue the court had to address was whether the alleged harassment by Mr Bose was in the course of Telstra providing goods, services, facilities, or performing a function or power under a Commonwealth law or power. The court also had to consider the principles applicable to the grant of leave under section 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth). Specifically, the court needed to determine whether the applicants' case had a reasonable prospect of success.

In examining the allegations, the court found that the harassment did not occur in the course of Telstra providing goods, services, or facilities, or performing a function or power under a Commonwealth law or power. The harassment arose from a dispute between neighbours, and while Telstra was providing goods or services, the harassment did not relate to that provision. Additionally, the court found that the applicants' case did not have a reasonable prospect of success. The court concluded that the principles guiding the grant of leave under section 46PO(3A)(a) did not support granting leave to the applicants, as their case lacked a reasonable prospect of success.

The court refused the applicants' application for leave under section 46PO of the Australian Human Rights Commission Act 1986 (Cth) to institute proceedings against Mr Bose and Telstra. The court ordered that the proceeding be listed for a case management hearing on a date to be fixed in consultation with the parties, but not before 17 October 2022.

Orders

Orders of the court

1. The applicants’ application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) for leave to institute proceedings against each of the respondents be refused.

2. The proceeding be listed for case management hearing on a date to be fixed in consultation with the parties not before 17 October 2022.

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

Full text does not contain this section.

Decision

Reasons for decision

For like reasons to those given in relation to s 28G, s 106(1)(b) has no application so as to render Telstra liable in relation to the alternative case advanced under s 28L of the SDA.CONCLUSION For these reasons, I refuse to grant leave to Mr and Mrs Weir under s 46PO of the AHRC Act for the institution of proceedings against Mr Bose and Telstra in respect of the AHRC Complaints.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 449 of 2021
Judgment of:	LOGAN J
Date of judgment:	19 August 2022
Catchwords:	HUMAN RIGHTS – application for leave under s 46PO(3A)(a) Australian Human Rights Commission Act 1986 (Cth) – principles applicable to grant of leave – held: a case without reasonable prospect of success would not warrant a grant of leave under s 46PO(3A)(a) HUMAN RIGHTS – sexual harassment – sexual harassment in the course providing goods, services and facilities and performing a function or excising a power under a Commonwealth law or for the purposes of a Commonwealth program – meaning of “person” – where relevant person must provide goods, services or facilities or perform a function or exercise a power in relation to the person harassed – where harassment occurred in the context of a dispute between neighbours – where goods, services or relevant Commonwealth law or program was provided by Telstra – held: harassment was not in the course of providing goods or services or performing functions under a Commonwealth law or power
Legislation:	Acts Interpretation Act 1901 (Cth) ss 2C, 15AA Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 49PH Human Rights Legislation Amendment Act 2017 (Cth) Migration Act 1958 (Cth) s 477A(2) Sex Discrimination Act 1984 (Cth) ss 3, 28A, 28G, 28L, 105, 106 Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 9 Telstra Corporation Act 1991 (Cth) s 8CM Federal Court Rules 2011 (Cth) r 26.01 Equal Opportunity Act 1984 (WA) Interpretation Act 1984 (WA) s 18
Cases cited:	AB v Western Australia (2011) 244 CLR 390 Budini v Sunnyfield [2019] FCA 2164 Bugge v Brown (1919) 26 CLR 110 Comcare v PVYM (2013) 250 CLR 246 General Steel Industries Ltd v Commissioner for Railways(NSW) (1964) 112 CLR 115 Harris v Bryce (1993) 41 FCR 388 Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 Hough v Caboolture Shire Council (1992) 39 FCR 514 IW v The City of Perth (1997) 191 CLR 1 James v WorkPower Inc [2018] FCA 2083 Leach v Burston [2022] FCA 87 Praljak v Department of Defence [2021] FCA 1668 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Salomon v A Salomon and Co Ltd [1897] AC 22 Stock Health Service Pty Ltd v Brebner (1964) 112 CLR 113 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Vaughan v Legal Services Board (2009) 25 VR 536
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	57
Date of hearing:	13 July 2022
Counsel for the Applicants:	Mr D Pritchard SC with Mr S Reidy
Solicitor for the Applicants:	Harmers Workplace Lawyers
Counsel for the First Respondent:	Mr M Follett
Solicitor for the First Respondent:	Seyfarth Shaw
Counsel for the Second Respondent:	The second respondent did not appear