Wilson v Britten-Jones

Case [2019] FCA 747

FEDERAL COURT OF AUSTRALIA

Wilson v Britten-Jones [2019] FCA 747

File number: NSD 214 of 2019
Judge: NICHOLAS J
Date of judgment: 24 May 2019
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction under s 46PP of Australian Human Rights Commission Act (1986) (Cth) – whether interlocutory injunction should be granted restraining respondents from convening meeting to consider whether applicant should be expelled from partnership – whether applicant demonstrated prima facie case for relief based on breach of s 14(3) and s 94 of the Sex Discrimination Act 1984 (Cth) – interlocutory injunction refused
Legislation:

Australian Human Rights Commission Act (1986) (Cth) ss 3, 46P(2), 46PD, 46PF, 46PO, 46PP

Defamation Act 2005 (NSW) s 14

Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1974 (Cth) s 23

Partnership Act 1981 (SA) s 28

Sex Discrimination Act 1984 (Cth) ss 5, 17(3), 94

Cases cited:

Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57

Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238

Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 106 IPR 218

Date of hearing: 26 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 89
Counsel for the Applicant: Dr C Ward SC
Solicitor for the Applicant: Mills Oakley
Counsel for the Respondents: Ms K Eastman SC with Ms S Fendekian
Solicitor for the Respondents: Clyde & Co

ORDERS

NSD 214 of 2019
BETWEEN:

LEXIA WILSON

Applicant
AND:

TONY BRITTEN-JONES (and others named in the Schedule)

First Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

24 MAY 2019

THE COURT ORDERS THAT:

1.The interlocutory injunction granted by Jagot J on 18 February 2019 be discharged.

2.The proceeding stand over to 9.30am on 3 June 2019 for a case management hearing and any argument in relation to costs.

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


REASONS FOR JUDGMENT

NICHOLAS J:

BACKGROUND

  1. Before me is an interlocutory application by the applicant seeking an interim injunction under s 46PP of the Australian Human Rights Commission Act (1986) (Cth) (“AHRC Act”) and s 23 of the Federal Court of Australia Act 1974 (Cth) (“the FCA Act”). 

  2. The applicant, Ms Wilson, is an equity partner of the law firm, Piper Alderman.  The respondents to the proceeding are her partners in the firm.  The applicant has been an equity partner of the firm since 1 March 2012 and, since that time, has worked in the Property Practice Group, primarily out of the Sydney office. 

  3. The proceeding was commenced by the filing of an originating application on 18 February 2019. On that date Jagot J granted the applicant an interlocutory injunction until further order pursuant to s 46PP of the AHRC Act restraining the respondents from proceeding to hold any meeting to consider any resolution the effect of which…

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Details
AGLC
Wilson v Britten-Jones [2019] FCA 747
Case
[2019] FCA 747
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Wilson v Britten-Jones involved an application for an interlocutory injunction under section 46PP of the Australian Human Rights Commission Act 1986 (Cth). The applicant sought an injunction to prevent the respondents from convening a meeting to consider expelling her from a partnership. The applicant alleged that this meeting was in breach of section 14(3) and section 94 of the Sex Discrimination Act 1984 (Cth). The court had to decide whether the applicant demonstrated a prima facie case for relief and whether an interlocutory injunction should be granted.

The court examined the jurisdiction under section 46PP(1) of the AHRC Act, which allows for an interim injunction in respect of a complaint lodged under section 46PP(2) before it is terminated. However, this jurisdiction does not extend to granting an injunction for grounds unrelated to the complaint. The court noted that it could only grant an injunction to maintain the status quo or to maintain the rights of the complainant, respondent, or affected person under the AHRC Act. The evidence included affidavits from the applicant and her solicitor, as well as from the respondents, and the complaint lodged with the Commission.

The court found that the applicant had not demonstrated a prima facie case for relief based on the breach of the Sex Discrimination Act. The court held that the complaint was not sufficient to establish a breach of the Act, and that the applicant had not shown that she was likely to succeed in her case. The court concluded that the interlocutory injunction should not be granted and discharged the injunction previously granted by Jagot J. The proceeding was then stood over for a case management hearing and any argument in relation to costs.

The final orders of the court were that the interlocutory injunction granted by Jagot J on 18 February 2019 be discharged, and the proceeding be stood over to 9.30am on 3 June 2019 for a case management hearing and any argument in relation to costs. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory injunction granted by Jagot J on 18 February 2019 be discharged.

2. The proceeding stand over to 9.30am on 3 June 2019 for a case management hearing and any argument in relation to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 46PP(1) is the source of the Court’s jurisdiction to grant an interim injunction in respect of a complaint lodged under s 46PP(2) of the AHRC Act before it has been terminated. However, it does not confer jurisdiction on the Court to grant an interim injunction in support of the applicant’s case on grounds unrelated to the complaint lodged by the applicant with the Commission. The Court may only grant an injunction under s 46PP(1) in order to maintain the status quo, as it existed immediately before the complaint was lodged (subpara (a)), or to maintain the rights of any complainant, respondent or affected person (subpara (b)). It is clear that “the rights” referred to in subpara (b) of s 46PP(1) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4).THE EVIDENCE The applicant relied on affidavits made by her on 5 February 2019, 8 February 2019, 22 February 2019 and 26 February 2019, together with an affidavit of her solicitor, Mr Davis, made on 18 February 2019. The respondents relied on affidavits made by Mr Morris on 18 February 2019 and Kiri Wilkinson also made on 18 February 2019. None of the deponents was cross-examined. The evidence includes a copy of Ms Thew’s report and its annexures, the partnership agreement, and a notice convening a partners’ meeting dated 23 January 2019 signed by Mr Britten-Jones. THE COMPLAINT The evidence also includes the written complaint lodged by the applicant with the Commission dated 30 January 2019 in which she alleges that she has been discriminated against by the respondents because of her sex. The complaint also includes an allegation by the applicant that she has been victimised because she made, or tried to make, a complaint about that discrimination. According to the applicant’s complaint, the events that are alleged to have given rise to it occurred in “October 2018 to date and continuing”. The complaint includes as an annexure a summary of the applicant’s allegations against the respondents. According to the summary, the applicant alleges that she was advised for the first time that complaints had been made in relation to her alleged conduct in the workplace on 9 November 2018 and that, on 23 November 2018, the complaints were referred for external investigation. The summary alleges that the respondents did not inform her of the complaints when they were first made as would have been the case had she been a male partner of the firm. The summary alleges that the external investigation process, and its findings, were fundamentally flawed. The summary also alleges that on 16 January 2019, the respondents caused the applicant’s access to its Sydney office to be cancelled with access to the office being restored the following day. The summary makes no mention of the circumstances that led up to the cancellation of the applicant’s access to the office or the basis on which it was restored. The summary further alleges that on 18 January 2019, the applicant wrote to Mr Capelin of Piper Alderman alleging that the managing partner, Mr Britten-Jones, and others had acted unlawfully by treating the applicant differentially, unfairly and less favourably when compared to their treatment of senior male staff and partners.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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