Weller v Anderson
[2021] FCA 503
•13 May 2021
FEDERAL COURT OF AUSTRALIA
Weller v Anderson [2021] FCA 503
File number: WAD 33 of 2020 Judgment of: MCKERRACHER J Date of judgment: 13 May 2021 Catchwords: HUMAN RIGHTS – sexual harassment and discrimination – competing allegations and denials of conduct – whether the applicant has discharged the onus of proof Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1B)(b), 46PO(2), 46PO(3A)(c)
Federal Court Rules 2011 (Cth) r 29.09
Sex Discrimination Act 1984 (Cth) ss 28A, 28B
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 28 Date of hearing: 21 April 2021 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
WAD 33 of 2020 BETWEEN: DAMON WELLER
Applicant
AND: MICHAEL ANTHONY ANDERSON
Respondent
ORDER MADE BY:
MCKERRACHER J
DATE OF ORDER:
13 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
By originating application filed on 13 February 2020, the applicant claims that he has been the subject to unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (SDA). He seeks compensation in the sum of $160,000 for loss of income over the last 2 years, future employment and ‘severe mental health problems’.
On 18 December 2019, the Australian Human Rights Commission terminated a complaint commenced by the applicant on 2 May 2019. The Commission terminated the complaint pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) which provides that the President (or delegate) must terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation. Pursuant to s 46PO(3A)(c) of the AHRC Act, leave to commence proceedings in this Court is not required when a matter is terminated under s 46PH(1B)(b).
The applicant also seeks an extension of time in his originating application though it would appear that the 60 day time limit provided by s 46PO(2) of the AHRC Act expired on 18 February 2020 such that he filed a few days within time. So leave is not required.
NATURE OF THE CLAIM
The applicant’s claims are set out in an affidavit filed on 21 July 2020 and arise from the alleged conduct of the respondent, who the applicant says employed him as a mechanic at his workshop. In light of the conclusion I have reached, it is unnecessary and inappropriate to record the precise details of the assertions against the respondent. The applicant also provides screenshots of text messages purportedly sent to him by the respondent in which the respondent allegedly makes lewd and suggestive comments of a sexual nature. The applicant says he stopped working for the respondent on 29 October 2018.
Broader context is provided by the applicant’s second affidavit filed on 15 March 2021 which indicates that at some point, the applicant accepted an offer to rent the respondent’s investment property. The applicant says that the relationship then began to break down with work hours being extended and daily cash payments of wages not being received. The applicant alleges that the respondent used his position of power as employer and landlord to take advantage of the applicant sexually.
By an affidavit filed on 19 October 2020, the respondent firmly denies these allegations. He also makes a number of allegations against the applicant of dubious relevance, and records a number of confrontations whereby the applicant made various accusations against the respondent. By affidavit filed on 14 April 2021, the respondent produces a Violence Restraining Order (VRO) issued by the Magistrates Court Midland on 24 December 2018. The order prohibits (amongst other things) the applicant from approaching within 50 metres of the respondent.
Further affidavits are relied upon by the respondent from witnesses to instances where the applicant is alleged to have confronted the respondent and/or the witnesses allegedly brandishing a weapon and/or making accusations against the respondent.
The respondent expressly denies that the applicant was actually ever employed as such, as distinct from being engaged as a sub-contractor. Invoices bearing the applicant’s Australian Business Number were rendered by the applicant and produced by the respondent.
PROCEDURAL HISTORY
These proceedings have a protracted history caused partly by a lack of legal representation and a lack of knowledge about court processes. Lockdowns caused by the COVID-19 pandemic from March to May last year also hindered the ability of the parties to comply with orders.
An initial timetable for the filing of materials was set down administratively by the Court on 17 March 2020 following the cancellation of all hearings due to COVID-19. The timetable provided the applicant with a month to put on any further evidence.
On 23 July 2020, a case management hearing was listed because neither party had filed any evidence nor written submissions in breach of the orders of 17 March 2020 and no requests for an extension, or any contact at all, had been received by the Court. At the case management hearing on 23 July 2020, both parties appeared by telephone and a new timetable was set programming the filing of evidence by both parties through to August and September 2020 with the matter then being referred to mediation.
Following non-compliance with this extended timetable, a case management hearing was listed on 16 September 2020 by telephone. The applicant did not appear at this hearing. Springing orders were made providing the applicant with 14 days to file and serve his evidence otherwise the proceeding would be dismissed. The following day, on 17 September 2020, the applicant filed an affidavit. The respondent then filed his affidavits on 19 October 2020, being a week later than he was permitted by the orders.
A registrar of the Court proceeded to mediate the dispute on 9, 15 and 21 December 2020 but was unable to resolve the matter. Following this, further programming orders were made administratively on 12 February 2021 setting down the final hearing date. In an email to the parties on 9 February 2021, the Court made explicitly clear to the parties the consequences of any further non-compliance with timetabling orders. Leave was sought by the applicant to appear at the hearing remotely by video as he had moved from Perth to Sydney. Leave was unopposed and granted.
On 3 March 2021, two days before the applicant was required to file any final evidence, he requested an extension of time to comply with the Court’s orders of five business days. This extension was granted against opposition on the basis that he was having technical difficulties with eLodgment and the extension would not jeopardise the hearing date or either parties’ time to file other materials. One day before the expiry of this extension, the applicant advised that he had attempted to file his documents in person at the Court’s New South Wales Registry but that he had been advised this could not be done as his matter was with the Western Australian Registry. The applicant express posted his documents to Perth which arrived one business day after the time allowed by the extended orders.
The respondent raised an objection to the fact that this evidence had been filed a day late. The parties were advised that any submissions with respect to non-compliance should be brought to the Court’s attention at the hearing on 21 April 2021.
On 12 April 2021, the respondent filed two further affidavits. The orders did not provide him with an opportunity to do so, though they did provide him with an opportunity to file written submissions by 9 April. Accordingly, the respondent was one business day late and filed the wrong document. The applicant filed a responsive affidavit on 16 April when in fact the orders permitted him to file written submissions by that date.
A substantial amount of the ‘evidence’ on affidavit is inadmissible. Much of it is submission, speculation, conclusionary and irrelevant, if not scandalous. But the basic assertions are made in admissible format, as are the very clear denials.
Neither party has filed any written submissions.
Neither party gave oral evidence, gave notice to cross-examine under r 29.09 of the Federal Court Rules 2011 (Cth), nor sought to cross-examine at the hearing.
THE HEARING
At the hearing each party read and relied upon the various affidavits described above. The parties were mostly unable to formulate technical evidentiary objections, but made clear that they disputed the truth of the adversary’s account. The exception was that the applicant did raise objections to the affidavits sworn by certain witnesses for the respondent on the ground of relevance. Those affidavits he said had been relied upon in the VRO proceedings and were irrelevant to this application. The respondent said they were relevant to credit as the applicant had denied the occurrences referred to in those affidavits. The affidavits were irrelevant to this proceeding and I will not rely upon them.
I do rely upon the applicant’s principal assertions and on the two affidavits of the respondent firmly denying the events the subject of the complaint and denying that the applicant was employed by the respondent.
CONSIDERATION
As to the respondent’s denial of ever employing the applicant, it is not possible to make a firm finding. At least at some point it appears that the applicant was a sub-contractor. Regardless of this, I proceed without deciding the employment point on the basis that if the applicant’s account of the events were accepted, both as to the actual conduct the subject of the complaint and the conduct of the texting, such conduct would breach the SDA as being sexual harassment within the meaning of s 28A of the SDA. If the events occurred in the manner described, they would have been distressing to the applicant.
But the applicant has the burden of proof in these matters. His accusations are seriously damaging to the reputation of the respondent.
I do not accept the respondent’s contention, as it appears it may be implicitly made, that the texts were ‘light hearted fun’. They were seemingly sent by someone, but the respondent says (without contradiction or cross-examination) that his mobile phone was always ‘on the desk for customer communications’ and the texts could have been sent by any staff member (it was in that context this he referred to light hearted fun within the workplace). He was not cross-examined on that evidence or his other denials. He says that the applicant had sent him constant horrible and obscene messages. They were not produced and indeed, the applicant pointed out that it was apparent from the screenshots of the texts that he had not responded to any of the texts that were before the Court. It is impossible to properly reach a conclusion that it was the respondent who personally sent the messages to the applicant in all these circumstances. That said, if it is sought to explain the texts as part of ‘light hearted banter’, I would not accept such a submission. The content was fundamentally inappropriate in a workplace.
Equally, it is impossible to properly conclude in the absence of any cogent oral evidence or any cross-examination that the strenuously denied accounts raised by the applicant are to be accepted. The applicant did not point to any factors from which the Court should conclude that his account was more likely to be true than the respondent’s account. After studying the affidavit material itself closely and considering the submissions made for the parties, there are no extrinsic corroborating factors allowing me to find support for the applicant’s account. Significantly, there were no contemporaneous corroborative statements or reports to authorities such as the police and less importantly, no support for the account given by third parties. As to the respondent’s denials, there were no inconsistencies within his account or with other objective material to give rise to doubt as to the respondent’s denials. As noted, much of the respondent’s material is irrelevant (and also salacious) but the relevant denials are unshaken by any material and not shown to be implausible in any way.
There was little, if any, evidence at all in support of the claim for compensation.
In this case, I repeat that the applicant has the onus of proof of such serious assertions. Complaints of this nature are often unlikely to be supported by witnesses of the actual conduct. That is a matter of which to be mindful in weighing the evidence in the absence of corroboration. This does not diminish the requirement for the applicant’s onus of proof to be discharged, and with a degree of satisfaction that has regard to the seriousness of the accusations. But there is no corroborative support of any nature whatsoever for the applicant’s account. The applicant did not press for oral evidence or for cross-examination. He did not point to any inconsistencies in the account of the respondent or to any inherent implausibilities in the account. I cannot be satisfied in all the circumstances that he has discharged that onus.
CONCLUSION
The application must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. Associate:
Dated: 13 May 2021
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