Weir v Telstra Limited

Case [2023] FCAFC 196

FEDERAL COURT OF AUSTRALIA

Weir v Telstra Limited [2023] FCAFC 196  

Appeal from: Application for extension of time: Weir v Telstra Corporation Limited [2022] FCA 969
File number: QUD 310 of 2022
Judgment of: COLLIER ACJ, RANGIAH AND THOMAS JJ
Date of judgment: 14 December 2023
Catchwords:

HUMAN RIGHTS – whether primary judge erred by refusing leave to commence proceedings under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) – whether it was reasonably arguable that the respondents breached ss 28G and 28L of the Sex Discrimination Act 1984 (Cth) – meaning of “in the course of” – whether it was reasonably arguable that the first respondent is vicariously liable under s 106 of the Sex Discrimination Act 1984 (Cth) for the conduct of the second respondent – meaning of “in connection with” – appeal allowed

PRACTICE AND PROCEDURE – application for extension of time – where delay was minimal – application for leave to appeal – adequate prospects of success – applications allowed

Legislation:

Acts Interpretation Act 1901 (Cth) s 2C(1)

Australian Human Rights Commission Act 1986 (Cth) ss 3, 46PH(1)(c), 46PO and 46PO(3A)(a)

Federal Court of Australia Act1976 (Cth) s 24(1A)

Sex Discrimination Act 1984 (Cth) ss 3, 4, 28A, 28G, 28G(1), 28L, 105, 106 and 106(1)

Sex Discrimination and other Legislation Amendment Act 1992 (Cth) ss 28B–28H, 28J–L

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

Telstra Corporation Act 1991 (Cth) s 8CM

Australian Consumer Law ss 18 and 60

Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1992 (NT)
Cases cited:

Disability Discrimination Act 1992 (Cth)

Hanson v Burston [2022] FCA 1234

James v WorkPower Inc [2018] FCA 2083

Leach v Burston [2022] FCA 87

Prince Alfred College Inc v ADC (2016) 258 CLR 134

Rainsford v Victoria (2005) 144 FCR 279

South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402

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

Tu'uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819

Vaughan v Legal Services Board (2009) 25 VR 536

Vitality Works Australia Pty Ltd v Yelda (No 2)[2021] NSWCA 147; (2021) 307 IR 443

Von Schoeler v Allen Taylor and Company Ltd and Others (No 2) (2020) 273 FCR 189

Weir v Telstra Corporation Limited [2022] FCA 969
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 123
Date of hearing: 22 May 2023
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 RPP Dalton KC with Mr E Gisonda
Solicitor for the First Respondent: Seyfarth Shaw Australia
Counsel for the Second Respondent: Mr AJ Schriffer
Solicitor for the Second Respondent: Armstrong Kutz Lawyers

ORDERS

QUD 310 of 2022
BETWEEN:

DARREN WEIR

First Applicant

MICHELLE WEIR

Second Applicant
AND:

TELSTRA LIMITED ACN 086 174 781

First Respondent

DIPJIT BOSE

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Details
AGLC
Weir v Telstra Limited [2023] FCAFC 196
Case
[2023] FCAFC 196
Decision Date

CaseChat Overview and Summary

The appeal in Weir v Telstra Limited concerned a complaint brought by the appellants against the respondents, including Telstra Limited and an individual respondent, for alleged sexual harassment in contravention of the Sex Discrimination Act 1984 (Cth) (SDA) and other related claims. The appellants sought leave to appeal the primary judge's decision, which had refused their application to commence proceedings under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the grounds that it did not possess sufficient prospects of success.

The court had to determine whether the primary judge was correct in refusing leave to the appellants to commence proceedings, considering the reasonable arguability of the appellants' claims under the SDA, specifically sections 28G and 28L, and the vicarious liability of the first respondent for the actions of the second respondent. Furthermore, the court examined the meaning of the phrases "in the course of" and "in connection with" in the context of the SDA and AHRC Act.

The court found that the primary judge's decision was erroneous. The court held that it was reasonably arguable that the respondents breached the SDA and that the first respondent could be held vicariously liable for the conduct of the second respondent. The court granted the appellants leave to appeal, set aside the primary judge's orders, and allowed the appeal. The respondents were ordered to pay the appellants' costs for both the application for leave to appeal and the appeal itself.

Orders

Orders of the court

1. The applicants be granted an extension of time to seek leave to appeal from the orders made by the primary judge on 19 August 2022.

2. The applicants be granted leave to appeal.

3. The appeal be allowed.

4. The orders of the primary judge be set aside.

5. The appellants be granted leave to make an application to the Federal Court of Australia alleging unlawful sexual harassment by the respondents.

6. The respondents pay the appellants’ costs of the application for leave to appeal and the appeal.

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

Background

Background to the litigation

In these circumstances, the applications for an extension of time and leave to appeal will be granted. We will refer to the applicants as the appellants. Factual background On 5 March 2021, the appellants lodged a complaint concerning the alleged conduct of the respondents with the Australian Human Rights Commission pursuant to the AHRC Act. The appellants allege that the second respondent sexually harassed them in contravention of s 28G(1) and s 28L of the SDA between September and November 2017, and that the first respondent (Telstra) is vicariously liable for his unlawful conduct. The appellants and the second respondent were neighbours. It is alleged that the second respondent was employed by Telstra as a Project Manager. The appellants were customers of Telstra. Telstra provided the appellants with telecommunication and information services for personal and business purposes, including providing two mobile telephone numbers, a landline telephone number and internet services. The appellants’ landline number was unlisted. The appellants allege that the second respondent used his Telstra laptop to access their customer information through Telstra’s IT infrastructure. They allege that the second respondent then placed advertisements on internet websites which purported to have been placed by the appellants and offered their participation in various sexual activities. The advertisements contained the appellants’ contact details. They allege that the second respondent also sent pornographic emails to them. They allege that the second respondent thereby engaged in sexual harassment of them in contravention of ss 28G and 28L of the SDA. The appellants also allege that in consequence of the advertisements, strangers sent pornographic emails to the appellants, and attended their home, sent text messages and made phone calls to them seeking to engage in the advertised sexual activities. They initially alleged these acts amounted to sexual harassment which the second respondent is taken under s 105 of the SDA to have engaged. On 27 October 2021, the appellants’ complaint against the respondents was terminated pursuant to s 46PH(1)(c) of the AHRC Act. That section allows termination of a complaint where the President is satisfied, having regard to all the circumstances, that an inquiry, or continuation of an inquiry, into the complaint is not warranted. The appellants subsequently commenced proceedings against the respondents in this Court claiming declarations, compensation and other relief for alleged contraventions of ss 28G(1) and 28L of the SDA and ss 18 and 60 of the Australian Consumer Law and for misuse of confidential information, breach of privacy, nuisance and trespass. Under s 46PO(3A)(a) of the AHRC Act, the appellants required the leave of the Court to make their application for the alleged contraventions of the SDA. Telstra opposed any grant of leave, while the second respondent neither consented to nor opposed leave. On 19 August 2022, the primary judge refused the appellants leave to commence their application against the respondents on the basis that the case did not enjoy sufficient prospects of success to warrant a grant of leave. The appellants appeal from that judgment.The legislative scheme

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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