Whelan v Oldfield Entertainment Pty Ltd

Case [2024] FCA 193

FEDERAL COURT OF AUSTRALIA

Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193

File number: NSD 992 of 2023
Judgment of: RAPER J
Date of judgment: 12 March 2024
Catchwords:

HUMAN RIGHTS – discrimination – where the applicant claims breaches of ss 15(2), 47 and 94 of the Sex Discrimination Act 1984 (Cth) – whether the Court has jurisdiction by reason of s 46PO(3) to hear and determine aspects of the claim – whether an applicant bringing a claim for victimisation is required to plead with particularity the asserted right and the concomitant conduct of the respondent

PRACTICE AND PROCEDURE – interlocutory application by the respondent for summary judgment and strike out – whether the applicant has no reasonable prospects of success with respect to certain aspects of her claim – respondent’s application to strike out aspects of statement of claim partially successful – applicant allowed to re-plead certain aspects of her claim
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PA, 46PF(4), 46PH(2), 46PO(3), 46PO(4), 46PR

Federal Court of Australia Act 1976 (Cth) ss 31A, 37M

Sex Discrimination Act 1984 (Cth) ss 5(1), 5(2), 14(2)(d), 47A(2), 94(2), 94(2)(f), 106(2)

Federal Court Rules 2011 (Cth) rr 16.21(d), 16.21(e), 26.01(a), 26.01(c), 34.163(2)

Cases cited:

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256

Cassell & Co Ltd v Broome [1972] AC 1027

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118

Eliezer v University of Sydney [2015] FCA 1045; 239 FCR 381

Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217

Hastwell v Kott Gunning [2017] FCA 1557

Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683

John Holland Pty Ltd v Maritime Union of Australia [2009] FCA 437

Kelly v Commonwealth [2023] FCA 69

Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226; 258 FCR 575

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Penhall-Jones v New South Wales [2007] FCA 925

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

Radisich v McDonald [2010] FCA 762; 198 IR 244

Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334

Spencerv Commonwealth [2010] HCA 28; 291 CLR 118

Taylor v August and Pemberton Pty Ltd [2023] FCA 1313

Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 159

Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 80
Date of hearing: 5 February 2024
Counsel for the Applicant: Ms K Eastman SC
Solicitor for the Applicant: Gadens
Counsel for the Respondent: Ms…

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Details
AGLC
Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193
Case
[2024] FCA 193
Decision Date

CaseChat Overview and Summary

In the case of Whelan v Oldfield Entertainment Pty Ltd, Ms Whelan, an actress, singer, and performer, filed a claim against Oldfield Entertainment, her former employer, alleging sex discrimination, sexual harassment, and victimisation under the Sex Discrimination Act 1984 (Cth). Ms Whelan claims that her former colleague, Mr McLachlan, engaged in inappropriate conduct during their employment period in 2014. Oldfield Entertainment filed an interlocutory application seeking summary judgment and a strike-out of certain parts of Ms Whelan's claim, arguing that she had no reasonable prospects of success and that her pleadings were deficient. The Court was required to decide whether it had jurisdiction to hear and determine the aspects of Ms Whelan's claim and whether she was required to plead with particularity the asserted right and the concomitant conduct of Oldfield Entertainment.

The Court found that it had jurisdiction to hear and determine aspects of Ms Whelan's claim by reason of s 46PO(3) of the Sex Discrimination Act 1984 (Cth). The Court also found that an applicant bringing a claim for victimisation was not required to plead with particularity the asserted right and the concomitant conduct of the respondent. Regarding the application for summary judgment, the Court held that it should not be exercised lightly and that it was inappropriate to summarily dismiss Ms Whelan's claims due to the complexity of the issues and the lack of a defence. However, the Court found that Oldfield Entertainment's application to strike out aspects of Ms Whelan's claim was partially successful. The Court struck out paragraph [134] of Ms Whelan's statement of claim but allowed her to re-plead the victimisation part of her claim. The Court also ordered that any party wishing to make an application for costs must file their application, evidence, and written submissions within seven days of the date of the judgment, and that the matter be listed for case management on 22 March 2024.

Orders

Orders of the court

1. Paragraph [134] of the applicant’s statement of claim filed on 9 November 2023 is struck out pursuant to r 16.21(d) of the Federal Court Rules 2011 (Cth).

2. The applicant is granted leave to re-plead the victimisation part of her claim pursuant to ss 47A and 94 of the Sex Discrimination Act 1984 (Cth).

3. Any party wishing to make an application for costs must, within seven days of the date of this judgment, file any application, any evidence in support of that application and written submissions (not exceeding two pages in length) which address the reasons for why a costs order can and should be made. The parties are then to confer and provide a mutually agreed time and date upon which the short argument regarding costs can be listed for hearing.

4. The matter be listed for case management on 22 March 2024.

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

Background

Background to the litigation

For the following reasons, I dismiss the application for summary judgment but will allow the application for strike out in part and will also allow Ms Whelan to re-plead that paragraph which has been struck out concerning her victimisation claim and to re-craft her claim to address the deficiencies identified in these reasons. Background Ms Whelan is an actress, singer and performer who was employed by Oldfield Entertainment between 29 November 2013 and 13 July 2014 to perform the role of “Janet” in Oldfield Entertainment’s production of The Rocky Horror Show (2014 show). Mr Craig McLachlan was employed by Oldfield Entertainment to play the lead role of ‘Frank-n-Furter’ in the 2014 show. During the 2014 show, Ms Whelan claims that Mr McLachlan inappropriately kissed her, touched her and used sexualised language to refer to other female employees involved in the 2014 show. Ms Whelan claims that she has been subjected to the following three forms of unlawful discrimination under the SD Act: sex discrimination, sexual harassment and victimisation. It is worthwhile also referring to the procedural history of this matter. Pursuant to orders made by the Court on 22 September 2023, Oldfield Entertainment was required to file and serve its defence by 10 November 2023. The day before it was required to do so, Oldfield Entertainment filed this interlocutory application. Under the same order, the matter was referred to Court-ordered mediation. Oldfield Entertainment has not filed any defence as yet. I echo the concerns of White J in Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683 at [35]–[36]:[35]...The time for making any such complaint about lack of particularity would be once defences have been filed and affidavits have been served, and only then, if it could seriously be contended that the defendants did not understand the case they have to meet.[36]Arguments about pleadings which have a tendency to delay the preparation of the case for hearing, and which are not really necessary for the defendant to understand the case against him, should be firmly discouraged. Power of the Court to strike out pleadings A party may apply to the Court for an order that all or part of a pleading be struck out on a number of bases, including, as relied upon in this application, pursuant to r 16.21(e) (the pleading fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading) and/or (d) (the pleading is likely to cause prejudice, embarrassment or delay in the proceeding). Oldfield Entertainment made no specific submission as to how one should approach the exercise of power in any special way by reference to either r 16.21(e) or (d). The parties agree that the power to strike out pleadings is a discretionary one, exercised when it is necessary to do so in the interests of justice: John Holland Pty Ltd v Maritime Union of Australia [2009] FCA 437 at [60]. The power should be exercised sparingly (see Radisich v McDonald [2010] FCA 762; 198 IR 244 at [20]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44]; Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510 at [5]) and only in a clear case, “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 159 at 175. The discretion is informed by the overarching purpose of civil practice and procedure in this Court as provided for by s 37M of the FCA Act and s 46PR of the AHRC Act. In the exercise of this power the Court should not take an unduly technical and overly pedantic approach to pleadings: Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 at [8]–[9]; Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [19]. Section 31A and r 26.01: Summary dismissal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition, Oldfield Entertainment seeks summary judgment with respect to those aspects of the pleading pursuant to s 31A of the FCA Act and r 26.01(a) and (c) of the Rules. Both provisions are relevantly extracted: 31A Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or (b) bound to fail;for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Court has apart from this section.(5) This section does not apply to criminal proceedings. 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because:(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … (c) no reasonable cause of action is disclosed; … To give summary judgment, the Court must be satisfied that the proceedings instituted by Ms Whelan were attended with no reasonable prospects of success and must be conscious that such a power must not be exercised lightly: Spencerv Commonwealth [2010] HCA 28; 291 CLR 118 at [60] per Hayne, Crennan, Kiefel and Bell JJ. The Court should be particularly cautious about summarily dismissing proceedings where they involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity which would require a full hearing: Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226; 258 FCR 575 at [62] quoting Eliezer v University of Sydney [2015] FCA 1045; 239 FCR 381 at [39]. In this case, Ms Whelan has filed her SOC and provided further particulars. No defence has been filed and, as a consequence, Ms Whelan and the Court do not know what factual allegations are admitted or disputed. Ms Whelan’s allegations should be taken at their highest. As observed by Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46]: …the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Victimisation claim: Paragraphs [134] and [101]–[133]

Ratio Decidendi

Legal Principle Established

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