Federal Court of Australia
Weir v Telstra Limited [2023] FCAFC 196
ORDERS
First Applicant MICHELLE WEIR Second Applicant | ||
AND: | TELSTRA LIMITED ACN 086 174 781 First Respondent DIPJIT BOSE Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
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.
THE COURT:
1 The applicants have applied for an extension of time to seek leave to appeal and for leave to appeal from the interlocutory judgment of a single judge of the Court in Weir v Telstra Corporation Limited [2022] FCA 969.
2 By that judgment, the applicants were refused a grant of leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) to make an application alleging that the respondents engaged in sexual harassment of the applicants in contravention of the Sex Discrimination Act 1984 (Cth) (the SDA).
3 As the primary judge’s decision was interlocutory, the applicants require leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In that regard, it is relevant that the judgment, although interlocutory, is final in its effect because it prevents the applicants from pursuing their claim for relief for contraventions of the SDA.
4 The application for leave to appeal was filed late because the applicants’ solicitors encountered difficulties in uploading the application through the Court’s portal. The delay was ultimately only three business days. An extension of time is not opposed by the respondents.
5 The merits of the proposed appeal are relevant to both applications. As will be seen, we consider that there are errors in the primary judge’s reasons and that the judgment should be set aside.
6 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.
7 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.
8 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.
9 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.
10 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.
11 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.
12 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.
13 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.
14 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.
15 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.
16 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.
17 Section 3 of the SDA provides that the objects of the Act include, relevantly:
(c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity
18 Division 3 of Part II of the SDA deals with sexual harassment. The Division commences by defining “sexual harassment”. It then contains a series of provisions stating it is unlawful for a person to sexually harass another person in specified areas of activity or circumstances.
19 The term “sexual harassment” is defined in s 28A of the SDA as follows:
28A Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
20 Section 28G of the SDA provides, relevantly:
28G Goods, services and facilities
(1) It is unlawful for a person to sexually harass, or harass on the ground of sex, another person in the course of providing, or offering to provide, goods, services or facilities to that other person.
…
21 Section 4 of the SDA gives an inclusive definition of “services”. In Rainsford v Victoria (2005) 144 FCR 279, Kenny J (with whom Hill and Finn JJ agreed) observed at [54] in respect of the Disability Discrimination Act 1992 (Cth), “the [Act] is to be generously construed and the word “services” includes all matters which ordinarily fall within that notion”.
22 Section 28L of the SDA provides:
28L Commonwealth laws and programs
It is unlawful for a person:
(a) in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or
(b) in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;
to sexually harass, or harass on the ground of sex, another person.
23 At the time of the relevant conduct, ss 105 and 106 of the SDA provided, relevantly:
105 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
…
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
…
24 Sections 28G and 28L are each found within Division 3 of Part II of the SDA. It may be noted that s 105 applied only to an act that is unlawful under Division 1 or 2 of Part II. Section 105 was amended in September 2021 to add a reference to Division 3 of Part II, but the amendment did not have retrospective effect.
The reasons of the primary judge
25 The primary judge held that an applicant under s 46PO(3A) of the AHRC Act must demonstrate a sufficient prospect of success to warrant a grant of leave, which will not be established unless the case is reasonably arguable. His Honour explained that a case would not enjoy a sufficient prospect of success where, taking the prospective applicant’s case at its highest, it could not amount to a contravention of the SDA.
26 The primary judge observed that the appellants contended that the sexual harassment allegedly perpetrated by the second respondent contravened ss 28G(1) and 28L of the SDA, and that the appellants also contended that the second respondent induced or caused the sexual harassment perpetrated by the men who responded to the advertisements and was taken under s 105 of the SDA to have engaged in their conduct. The primary judge noted that s 105 in its form at the time of the conduct had no application to acts made unlawful by s 28G or s 28L. The appellants had eventually conceded that s 105 did not apply and sought to rely on a proposed amended statement of claim alleging that the intended or natural and probable consequence of the second respondent placing the advertisements was for persons to send the appellants the emails, make the home visits and call their phones.
27 The appellants contended that Telstra was liable for the second respondent’s alleged contraventions under s 106(1) of the SDA on the basis that the second respondent was an employee of Telstra and committed the alleged sexual harassment in connection with his employment. It may be noted that the appellants did not allege that Telstra by its own conduct engaged in sexual harassment in contravention of s 28G or s 28L.
28 The primary judge began his consideration of the appellants’ case under s 28G(1) and s 28L of the SDA by considering the meaning of the word “person” in those provisions. His Honour observed that under s 2C(1) of the Acts Interpretation Act 1901 (Cth), in any Act, expressions used to denote persons generally include a body politic or corporate as well as an individual. His Honour considered it to be inconsistent with the definition of “sexual harassment” in s 28A that a body corporate may either sexually harass or be the recipient of sexual harassment. His Honour’s view was a natural meaning of the definition of “sexual harassment” is that it refers to the conduct of one individual (or perhaps a group of individuals) in relation to another individual (or perhaps a group of individuals), suggesting that “person” in s 28G(1) cannot be a reference to a body corporate. His Honour considered this view to be reinforced by s 106(1), which is premised on an individual being able to do an unlawful act under Division 3 of Part II for which his or her employer or principal may be made liable.
29 The primary judge considered that s 28G(1) of the SDA in conjunction with s 28A and s 106 yields a conclusion that a contrary intention to s 2C(1) of the Acts Interpretation Act is evident, such that “person” where appearing in s 28G(1) must refer only to an individual. His Honour held that “person” in s 28G(2) has the same limitation.
30 The primary judge also reasoned that it necessarily follows from s 106(1) of the SDA that an individual may, for the purposes of s 28G(1), provide a service, even where the legal relationship with respect to the provision of that service may be as between a body corporate employer or principal and the person allegedly harassed. His Honour, accordingly, rejected Telstra’s submission that s 28G(1) could have no application to the second respondent on the basis that only Telstra, and not the second respondent, provided services to the appellants.
31 The primary judge noted that the appellants had submitted that s 28G(1) of the SDA captures sexual harassment by employees who may not be directly “customer facing” but whose position, privileges or role in the enterprise that provides or offers the services allows a superior opportunity to engage in sexually harassing conduct. His Honour considered this submission to be based on the flawed premise that in s 28G, “person” can include a body corporate. His Honour did not explain why such a premise was necessarily involved.
32 The primary judge held that an incident of a telecommunication services contract, namely confidentiality of personal information such as home and email addresses and telephone numbers, may be a “service” within s 28G. His Honour considered that question then became whether any of the pleaded conduct was, even arguably, “in the course of” the provision of such a service by the second respondent.
33 The primary judge then examined judgments of the High Court concerning the meaning of phrases “in the course of employment” and “in the course of his profession”, and considered them to provide some guidance to the meaning of, “in the course of providing…services” in s 28G(1) of the SDA.
34 The primary judge concluded that the phrase, “in the course of providing…services”, in s 28G(1) refers to, “something done by the individual in the provision of the services, not in some other capacity”. His Honour found that none of the conduct constituted by the pleaded acts occurred “in the course of” his providing services to them. His Honour also found that the inevitable conclusion was that the conduct concerned occurred in the course of a private dispute between neighbours, not in the course of the provision of services by the second respondent to the appellants.
35 For these reasons, his Honour held that s 28G(1) of the SDA had no application to the conduct pleaded against the second respondent.
36 The primary judge noted that Telstra’s liability was dependent upon the second respondent’s conduct being unlawful by virtue of Division 3 of Part II and that it necessarily followed that s 106(1)(b) could not render Telstra vicariously liable.
37 The primary judge went on to also conclude that the requirement of s 106(1) of an act being done, “in connection with the employment of the employee”, was not satisfied. The primary judge considered that in s 106(1), “in connection” excludes conduct that is merely incidental and peripheral to the central purpose of the employment relationship and dealings. His Honour concluded at [50] that it was pleaded that the second respondent’s access as an employee facilitated the alleged conduct, but that conduct, as pleaded, had nothing to do with his provision of services to the appellants. His Honour considered that the conduct could only be viewed as “in connection with” a private dispute between neighbours.
38 For that additional reason, his Honour held that s 106(1) of the SDA could not apply to make Telstra vicariously liable for the second respondent’s conduct.
39 The primary judge stated that the conclusions reached in relation to s 28G(1) carried the same ramifications for the application of s 28L. His Honour held that the word “person” in s 28L refers to an individual, not a company, and “in the course of” likewise refers to something done by the individual in the provision of the services described in s 28L.
40 His Honour accepted the appellants’ submission that a Commonwealth program (or law) in s 28G could refer to the “universal service obligation” provided for in s 8CM of the Telstra Corporation Act 1991 (Cth) and as described in s 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth). However, his Honour concluded that the conduct alleged cannot be regarded as having occurred “in the course of” performing any function, or exercising any power or carrying out any other responsibility for the administration of any Commonwealth program or law by the second respondent. His Honour considered that the conduct pleaded just occurred “in the course of” a dispute between neighbours and that s 28L therefore had no application.
41 For like reasons to those regarding s 28G(1), his Honour held that s 106(1) had no application so as to render Telstra liable under s 28L of the SDA.
42 The primary judge ultimately refused the appellants’ application for leave under s 46PO(3A)(a) of the AHRC Act to institute proceedings against the second respondent and Telstra in respect of the AHRC complaints.
43 The appellants’ grounds of appeal are as follows:
1. The primary judge erred in finding on the leave application that the conduct alleged in both versions of the statement of claim cannot amount to a contravention of ss 28G and 28L of the Sex Discrimination Act 1984 (Cth) (SDA) (reasons for decision paragraph [24]).
2. The primary judge erred on the determination of a leave application in the construction and application of the expression “in the course of’ in s 28G(1) of the SDA (reasons for decision paragraphs [46]-[48]) in finding that the inevitable conclusion was that the conduct occurred in the course of a “private dispute between neighbours” and that s 28G(1) was inapplicable in the circumstances including where the primary judge found that the Second Respondent did not have to be “client facing” in order to establish liability for sexual harassment and where the full extent of the Second Respondent’s duties and responsibilities could only be determined at trial (the circumstances).
3. The primary judge erred on the determination of a leave application in the construction and application of the expression “in the course of’ in sections 28L(a) and (b) of the SDA (reasons for decision paragraphs [53] and [55]):
a. by reason of the matters in Ground 2 above;
b. by failing to construe and apply s 28L(a) as a whole, namely, the words “in the course of performing any function” in the circumstances in Ground 2 above and of the finding of a sufficient case of the existence of a Commonwealth program;
c. by failing to construe and apply s 28L(b) as a whole, namely, the words “in the course of carrying out any other responsibility” in the circumstances in Ground 2 above and of the finding of a sufficient case of the existence of a Commonwealth program.
4. The primary judge erred in the construction and application of the expression “in connection with the employment of the employee” in s 106(1) of the SDA (reasons for decision paragraphs [50] and [56]), namely, by restricting the wide scope of the words without a determination of the facts concerning the employment of the second respondent and by finding that the connection did not exist where there was “a private dispute between neighbours”.
5. The primary judge erred in limiting the construction and application of the term “person” to refer to an individual in s 28G and, or in the alternative, s 28L of the SDA (reasons for decision paragraphs [36], [38], [52]).
44 Ground 1 is a general ground alleging that the primary judge erred in finding that the conduct alleged cannot amount to a contravention of ss 28G and 28L of the SDA. Ground 1 does not add anything to the remaining grounds, and it is unnecessary to consider it separately.
45 The appellants’ argument is, in substance, that the primary judge erred in failing to find that they had demonstrated an arguable case of contravention of s 28G(1) and s 28L of the SDA.
46 The appellants argue that the primary judge drew inapt comparisons with the meaning of “in the course of” in other legislative contexts to conclude that the phrase, “refers to something done by the individual in the provision of the services, not in some other capacity”. They submit that the expression “in the course of” is not a source of limitation, but merely requires a link between the unlawful conduct and an area of public life, and that the phrase should be given an expansive and generous construction to achieve the statutory purpose. They submit that the unlikely consequence of his Honour’s construction is that where sexual harassment occurs in two concurrent courses, there can be no contravention of s 28G or s 28L. The appellants also submit that the primary judge erred in determining the matter on the basis that the second respondent’s purpose or motive was relevant.
47 The appellants contend that the acts of the second respondent were sufficiently closely connected with the services Telstra provided and its Commonwealth functions and programs, as well as with the services that the second respondent was required to provide by virtue of his employment, to establish an arguable case that the acts were done in the course of providing those services or programs.
48 Telstra submits that the primary judge did not construe the legislation as requiring a choice to be made when there is more than one course involved, nor did his Honour contemplate that motive or purpose was relevant. Telstra submits that his Honour merely concluded that the alleged conduct of the second respondent was not part of any services he provided to the appellants.
49 Telstra submits that the appellants’ claim rests on the second respondent’s opportunity and access in his Telstra employment being sufficient to render the second respondent’s conduct “in the course of” providing the alleged services to the appellants. They argue that whatever the arguable metes and bounds of the expression “in the course of” in s 28G(1), more was required than the opportunity and access afforded by the employment for the impugned conduct to take place.
50 The second respondent submits that the appellants have conflated the conduct of Telstra and the second respondent. It is Telstra which provided a service to the appellants and did so under a universal service obligation. The second respondent submits that as the appellants have not identified any service he provided to the appellants, nor any function, power or responsibility of the second respondent under a universal service obligation. He submits that, accordingly, s 28G(1) and s 28L are not engaged.
Ground 2: Construction and application of s 28G(1) of the SDA
51 Ground 2 of the Notice of Appeal asserts that the primary judge erred in the construction and application of the expression “in the course of” in s 28G(1) of the SDA.
52 The application before the primary judge was for leave to commence a proceeding alleging that the second respondent contravened s 28G(1) and s 28L of the SDA and that Telstra is vicariously liable under s 106(1) for that conduct. The appellants did not allege that Telstra directly contravened s 28G(1) or s 28L.
53 Section 46PO of the AHRC Act provides, relevantly:
46PO Application to court if complaint is terminated
Making an application
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
…
54 The expression “unlawful discrimination” is defined in s 3 of the AHRC Act to mean, relevantly, “any acts, omissions or practices that are unlawful under…Part II of the Sex Discrimination Act 1984”. Sections 28G and 28L are within Part II of the SDA. Section 46PO of the AHRC Act treats sexual harassment as being encompassed within unlawful discrimination. Where a complaint has been terminated under s 46PH of the AHRC Act, a party seeking to commence a proceeding alleging sexual harassment in contravention of the SDA is required to obtain the leave of the relevant Court.
55 The appellants filed an originating application and statement of claim alleging they had been sexually harassed by the second respondent in contravention of s 28G(1) and s 28L of the SDA (and also raising other causes of action) prior to seeking leave under s 46PO(3A) of the AHRC Act. The respondents have not argued that leave may not be granted after proceedings have been commenced.
56 In James v WorkPower Inc [2018] FCA 2083, Mortimer J (as the Chief Justice was then) observed at [31] that in the exercise of the discretion under s 46PO(3A)(a) of the AHRC Act, the administration of justice will be a governing consideration. Her Honour held at [37], in a passage with which we respectfully agree:
I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
57 Her Honour also held at [39]:
…It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court- directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.
58 Her Honour’s opinion that the Court, “ought not embark on a detailed consideration and determination of the merits”, must be qualified by the reasoning of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [18]–[19], [28] and [41] that there may be circumstances where a detailed evaluation of the merits is appropriate.
59 We agree that contested questions of fact should generally be left for determination at trial, subject to some qualifications including that the facts alleged may be so outlandish, far-fetched and fanciful that a judge might not be obliged to proceed upon an assumption that they are true. We also agree that arguable questions of law should ordinarily be determined at trial, but accept that in a particular case it may be appropriate to determine an arguable question of law if an answer against the applicant will be determinative. That is the approach the primary judge purported to take in the present case. His Honour stated at [11] that:
If the point of law were reasonably arguable it would be inappropriate to refuse leave. Conversely, if the point were clear and fatal to the complaint, it would be in keeping with the purpose of s 46PO of the AHRC Act to refuse leave.
60 It may be seen from the outcome of the application that the primary judge considered that the proper construction of the phrase “in the course of” in s 28G(1) and s 28L of the SDA was not reasonably arguable, but was clear and fatal.
61 In light of the parties’ submissions, the issue for the primary judge was whether the appellants had demonstrated a reasonably arguable case of contravention of s 28G(1) or s 28L of the SDA against the second respondent. If no reasonable case could be demonstrated against the second respondent, it necessarily followed that vicarious liability could not be established against Telstra.
62 It may be observed that the SDA does not prohibit all sexual harassment, but only makes sexual harassment unlawful where it occurs in specified areas. That may be contrasted with the Anti-Discrimination Act 1991 (Qld) and the Anti-Discrimination Act 1992 (NT) which make all sexual harassment unlawful.
63 When enacted, the SDA only made sexual harassment in the areas of work and education unlawful. The SDA was amended by the Sex Discrimination and other Legislation Amendment Act 1992 (Cth) to extend the areas in which sexual harassment is unlawful to cover employment and partnerships (s 28B), members of bodies with power to grant occupational qualifications (s 28C), registered organisations (s 28D), employment agencies (s 28E), educational institutions (s 28F), goods, services and facilities (s 28G), provision of accommodation (s 28H), land (s 28J), clubs (s 29K) and Commonwealth laws and programs (s 28L). Despite the age of these provisions, an understanding of their scope remains an area for development, having received surprisingly little judicial attention so far. That suggests a need for caution in determining contested issues of interpretation at the stage of an application for leave to commence a proceeding. Such caution is of particular importance when considering a critical phrase, such as “in the course of...”, which is used in a number of different provisions in Division 3 and requires consideration of the overall context.
64 Section 28G(1) of the SDA provides, relevantly, that “[i]t is unlawful for a person to sexually harass…another person in the course of providing…services…to that other person”.
65 The appellants sought to demonstrate a reasonably arguable case that, first, they had been “sexually harassed” within the meaning of s 28A of the SDA; and, second, the sexual harassment had been conducted by the second respondent “in the course of providing…services” to them.
66 The primary judge considered the appellants’ case primarily by reference to both versions of their statement of claim. The appellants pleaded, relevantly:
(a) The appellants contracted with Telstra for it to provide telecommunication and information services, including mobile telephone numbers, landline telephone numbers and internet services (their home telephone number and address was unlisted).
(b) The appellants were required to give Telstra private information including their names, address, telephone numbers and email address.
(c) Telstra’s privacy policy guaranteed the privacy of the private information and provided that the private information would be used only for limited specified purposes to do with the Telstra business.
(d) Telstra and its employees were under an obligation of confidence not to disclose customers’ private information to others.
(e) The second respondent was employed by Telstra as a Project Manager.
(f) Telstra provided the second respondent with a mobile telephone number and a laptop
(g) Telstra allowed the second respondent access to information held about its customers, including by arranging a Commonwealth security clearance for him.
(h) The second respondent used his Telstra laptop to post advertisements on internet websites purporting to be placed by the appellants and offering their sexual services, and sent emails to their email address containing pornographic images.
(i) The second respondent accessed Telstra’s records and used the appellants’ private information, including their names, address, telephone numbers and email address in the advertisements and to send the pornographic emails.
(j) The second respondent’s sexual harassment was in connection with his employment for reasons including that his conduct took place at work, he used Telstra’s equipment and he accessed the private information stored by Telstra.
(k) The second respondent sexually harassed the appellants in contravention of s 28G(1) and s 28L of the SDA.
(l) By the operation of s 106(1) of the SDA, Telstra is liable for the sexual harassment perpetrated by the second respondent.
67 The primary judge held that the second respondent’s alleged conduct in placing the advertisements for sexual services and sending pornographic emails raised a reasonably arguable case that he had engaged in “sexual harassment” of the appellants within the meaning of s 28A of the SDA.
68 The critical question for the primary judge became whether the appellants had demonstrated a reasonably arguable case that the sexual harassment allegedly perpetrated by the second respondent was “in the course of providing…services” within s 28G(1) of the SDA.
69 The manner of drafting of the two statements of claim suggested that the appellants’ case under s 28G(1) was that Telstra had provided services to the appellants, and that the second respondent had sexually harassed them in the course of Telstra’s provision of those services. That would have involved an interpretation of s 28G(1) such that the person conducting the sexual harassment in not necessarily required to be the person providing the services.
70 However, the appellant does not seem to have argued the case in that way before the primary judge. His Honour proceeded on the basis that the appellants were required to demonstrate a reasonably arguable case that the second respondent’s alleged harassment occurred in the course of the provision of services by the second respondent (not Telstra) to the appellants. The parties argued the appeal upon a tacit assumption that this aspect of his Honour’s construction is correct. An argument might (we put it no higher) be available that the interaction of s 28G(1) and s 106(1) indicates that the former provision might catch sexual harassment engaged in by a person in the course of the provision of services by someone else, for example, their employer. In the absence of any argument on the point we will proceed on the basis of the parties’ assumption that this aspect of the primary judge’s construction is correct.
71 A related matter is that the primary judge held that an individual may provide a service for the purposes of s 28G(1) of the SDA even though the legal relationship for the provision of the service is between a body corporate employer or principal and the person sexually harassed. The parties argued the appeal upon an assumption that this construction is correct and that s 28G(1) may have been contravened if the sexual harassment occurred in the course of the second respondent providing services that Telstra had contracted with the appellants to provide. We will also proceed on the basis of that assumption.
72 Whether the appellants had demonstrated a reasonably arguable case that the second respondent had engaged in the alleged sexual harassment “in the course of providing…services” within s 28G(1) of the SDA required consideration of three questions:
(1) What were the services alleged by the appellants to have been provided to them by the second respondent?
(2) Was it reasonably arguable that the second respondent had provided those services to the appellants?
(3) Was it reasonably arguable that the second respondent’s alleged sexual harassment occurred in the course of providing those services to the appellants?
73 The primary judge’s approach to the first two questions is reflected in the following passages:
…[I]t may consequentially be accepted that an incident of a telecommunication services contract namely confidentiality of personal information such as home and email addresses and telephone numbers was a “service”.
The question becomes whether any of the pleaded conduct was, even arguably, “in the course of” the provision of such a service by Mr Bose?
74 In these passages, his Honour seemed to accept that it was reasonably arguable that the second respondent provided services to the appellants; that the nature of the services was telecommunications services; and that maintaining confidentiality of personal information was an incident of the provision of such services.
75 The primary judge’s answer to the third question was that it was not reasonably arguable that the second respondent’s alleged sexual harassment was “in the course of” providing services to the appellants. As we will explain, that answer turned upon his Honour’s interpretation of s 28G(1) as having a particular and confined meaning.
76 The primary judge set out a passage from Stock Health Service Pty Ltd v Brebner (1964) 112 CLR 113, where the High Court was concerned with the phrase “in the course of his profession” in legislation governing the prescription of drugs by veterinary surgeons. In that passage, Windeyer J (Kitto J agreeing) held at 122:
The words “in the course of his profession” mean in the performance of a distinct professional engagement. They point to acts done by a veterinary surgeon in his professional capacity - not to something done by him in some other capacity as for example when addressing a public meeting or in a letter to a newspaper on some subject of public controversy or as a director of a company.
(Emphasis added by the primary judge.)
77 The primary judge then concluded that the phrase, “in the course of providing…services”, in s 28(1) of the SDA refers to, “something done by the individual in the provision of the services, not in some other capacity”. His Honour’s conclusion reflects the language of the emphasised parts of the passage from Brebner.
78 His Honour continued:
As pleaded, the “Advertisements”, the Bose emails”, “Other Emails”, “Home Visits” and the “Phone Communications” were each facilitated by access which Mr Bose enjoyed by virtue of his then employment with Telstra to the personal information of Mr and Mrs Weir but none of the conduct constituted by these pleaded acts occurred “in the course of” his providing services to them. The inevitable conclusion is that the conduct concerned occurred in the course of a private dispute between neighbours, not in the course of the provision of services by Mr Bose to Mr and Mrs Weir.
79 The primary judge apparently interpreted the passage from Brebner as meaning that an act can be either in the course of the person’s professional capacity or in some other capacity, but not both. His Honour then applied that passage to the present statutory context. The primary judge found that the sexual harassment allegedly engaged in by the second respondent occurred in the course of a private dispute between neighbours. His Honour seems to have used the word “private” to refer to a dispute unrelated to the provision of any service. His Honour reasoned that if the sexual harassment occurred in the course of a private dispute, it cannot have also occurred in the course of providing services. His Honour’s reasoning involved a construction of s 28G(1) such that sexual harassment cannot occur both in the course of providing services and in the course of a dispute unrelated to the provision of services.
80 We are unable, with respect, to accept the primary judge’s construction of s 28G(1) of the SDA. Nothing in the language of the provision suggests that sexual harassment cannot occur both in the course of providing services and in the course of a dispute unrelated to the provision of services. Neither does the context suggest such a dichotomy. It is evident that sexual harassment may occur both in the course of providing services and in the course of some dispute, or for some other motivation, unrelated to the services provided. Under s 3(c), an object of the SDA is to eliminate, so far as is possible, sexual harassment in specified areas of public activity. In this context, it is most unlikely that the legislative intention could be to remove sexual harassment from the reach of s 28G(1) merely because it also occurs in the course of a private dispute.
81 Further, the appellants’ allegation was, in effect, that the second respondent engaged in the sexual harassment as an act of vengeance or spite stemming from their neighbourhood dispute. The primary judge’s conclusion that s 28G(1) cannot apply in such circumstances suggests that his Honour considered that sexual harassment is excluded as occurring in the course of providing services if the perpetrator’s subjective motivation or purpose in engaging in the sexual harassment is unrelated to the services. That cannot be accepted. If, for example, a doctor sexually harasses a patient during a consultation, the fact that the act was done for the doctor’s private purpose of gratifying his sexual desires would not remove the harassment from the description of occurring in the course of providing services to the patient. There will inevitably be some underlying motivation or purpose in sexual harassment, often sexual or in order to exercise power, but sometimes also for reasons such as revenge or spite. The harasser’s motivation or purpose cannot of itself remove the conduct from the scope of the provision.
82 We do not interpret the passage relied on by the primary judge from Brebner as indicating that an act can be either in the course of the person’s profession or in some other capacity, but not both. In that passage, Windeyer J was simply contrasting an act done by a veterinary surgeon in their professional capacity with something done in some other capacity. The High Court was not called upon to consider whether an act could be done both in a professional capacity and some other capacity.
83 The primary judge’s construction of s 28G(1) of the SDA such that if sexual harassment occurs in the course of a private dispute it cannot occur in the course of the provision of services was, with respect, erroneous. That erroneous construction led his Honour to conclude that, even though the second respondent may have provided telecommunication services to the appellants, the sexual harassment cannot have occurred in the course of the second respondent’s provision of those services.
84 In the appeal, the respondents emphasised the absence of any identification by the appellants in their pleading of the nature of the services they alleged were provided. Since the appellants alleged that the second respondent had sexually harassed them in the course of the second respondent’s provision of services to them, it was centrally relevant to identify those services. However, neither of the two versions of the statement of claim did so. To be fair to the primary judge, the way the appellants presented their case made it difficult to understand exactly what they were alleging. Nevertheless, his Honour discerned from the appellants’ submissions that they were alleging that the second respondent had provided them with telecommunications services.
85 The respondents rely on Hanson v Burston [2022] FCA 1234 and Leach v Burston [2022] FCA 87. In each of those cases, an application was made for summary dismissal or striking out of a pleading, so that the terms of the pleading were considered critical. In contrast, the present case involved an application for leave to commence a proceeding. The application could have been made before commencing the proceeding, but, as it happened, the application was made after a statement of claim had been filed. In assessing whether the appellants had demonstrated that the case they proposed to bring was reasonably arguable, the primary judge was not confined to the pleadings, but was also able to take into account their submissions explaining the manner in which they proposed to make their case. That is exactly what his Honour did when identifying that the appellants’ allegation was that the second respondent had provided them with telecommunications services and accepting that it was reasonably arguable that he had provided such services.
86 In the appeal, the appellants expressly articulated that the services alleged to have been provided by the second respondent were telecommunication services. This submission was said to be consistent with the opinion of the primary judge that an individual may provide a service even though the legal relationship may be between a body corporate employer or principal and the person allegedly harassed. The submission seems to be that when Telstra contracted with the appellants to provide them with telecommunication services, the work required to provide those services had to be done by its employees, and that the performance of that work by the employees can be described as providing telecommunication services.
87 There is very little evidence presently before the Court about what the second respondent’s duties at Telstra involved. There was before the primary judge an affidavit annexing a document describing the second respondent’s duties, but that document was not before the Court in the appeal. The two statements of claim alleged that the second respondent was a Project Manager, that he had been issued by Telstra with a laptop computer and had a security clearance that allowed him access to customers’ information stored by Telstra, including the appellants’ personal information.
88 It may be inferred that Telstra stored information about its customers, including the appellants, for the purpose of providing them with telecommunication services, including matters incidental to such services such as billing, marketing, making improvements and changes to services, preventing faults, addressing faults and dealing with inquiries and complaints. In the absence of any further evidence about the second respondent’s duties, it may be inferred that he was allowed to access and make use of customers’ information to enable him to assist customers, whether directly or indirectly. It is reasonably arguable that even employees who have no direct contact with customers, but assist in back-office functions that allow Telstra’s systems to function or function better, may be providing services to customers.
89 In these circumstances, it is reasonably arguable that the second respondent was engaged in the provision of telecommunications services, or at least matters incidental to the provision of telecommunication services, to the appellants when he accessed and extracted their personal information. That the second respondent then misused the information by disclosing it to others and sending the appellants sexually explicit emails would not necessarily remove his actions from the description of occurring in the course of providing services. He was apparently authorised to make use of the information, and did make use of it, but in an unauthorised way. In this respect, the primary judge considered that the keeping of private information confidential could be regarded as an incident of providing telecommunications services. It may also be argued that, even of itself, the second respondent’s failure to keep the information accessed confidential can be described as being in the course of providing services. Added to these matters is the second respondent’s alleged use of the work laptop to carry out the sexual harassment. In circumstances where it is alleged that the telecommunications services provided by the second respondent gave him the opportunity and means of accessing information necessary to carry out his sexual harassment of the appellants and that he made use of equipment used for the provision of services to do so, it is reasonably arguable that the harassment occurred in the course of providing services.
90 The respondents argue that the only connection alleged by the appellants between the second respondent’s sexual harassment and his provision of service was that the services gave him the opportunity to engage in the sexual harassment. They submit that mere opportunity cannot be enough to establish that the sexual harassment occurred “in the course of providing…services”. Certainly, in Prince Alfred College Inc v ADC (2016) 258 CLR 134, when considering in what circumstances an employer can be vicariously liable for an intentional tort committed by an employee, the High Court held at [81] that the fact that employment affords an opportunity for the commission of the wrongful act does not of itself mean it was committed in the course or scope of employment.
91 However, s 28G(1) of the SDA provides a quite different context. Even assuming the only connection between the sexual harassment and the provision of service is the opportunity it provided to engage in the harassment, it seems at least arguable that the creation of such an opportunity provides sufficient connection to allow it to be determined that the sexual harassment occurred “in the course of providing…services”. In addition, in Prince Alfred College, it was held that other relevant factors include the authority, power, trust and control that the harasser has in relation to the victim, and whether the harasser takes advantage of their position. In this case, the appellants allege that it was the second respondent’s provision of services which allowed him access, power and control over their personal information and that he took advantage of his position. These matters also suggest it is reasonably arguable that the sexual harassment occurred in the second respondent’s provision of services.
92 The first meaning of “services” in the Macquarie Dictionary is “an act of helpful activity”. It may be that the expression extends beyond the helpful to activities that are or become detrimental. That is particularly so in the context that sexual harassment itself is necessarily detrimental.
93 It is not difficult to think of examples of other cases which might test the width of the expression “in the course of providing…services”, and which might bear some comparison. One example is where a person has provided services to a customer in the past and months later accesses her phone number from his records and proceeds to sexually harass her. Another is where a person is engaged to provide a service to a customer but does not actually embark on any work at all and instead sexually harasses the customer. In each case it seems arguable that in its context, the phrase “in the course of providing…services”, is sufficiently wide to cover the conduct. The point to be made is that it is no easy task to define the limits of “in the course of providing...services” under s 28G(1) of the SDA and, even if that can be done, application of the limits may prove difficult.
94 In our opinion, it is reasonably arguable that the second respondent’s alleged sexual harassment of the appellants was “in the course of providing…services” within s 28G(1) of the SDA.
95 Accordingly, the primary judge erred in holding that the appellants should not be granted leave to commence a proceeding alleging contravention of s 28G(1) of the SDA.
Ground 3: Construction and application of s 28L of the SDA
96 Ground 3 of the Notice of Appeal asserts that the primary judge erred in the construction and application of the expression “in the course of” in s 28L(a) and (b) of the SDA.
97 Section 28L(a) makes it unlawful for a person to sexually harass another person in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program.
98 Section 28L(b) makes it unlawful for a person to sexually harass another person in the course of carrying out any other responsibility for the administration of a Commonwealth law or for the conduct of a Commonwealth program.
99 The primary judge accepted that a Commonwealth law or program in s 28L could refer to the “universal service obligation” provided for in s 8CM of the Telstra Corporation Act and as described in s 9 of the Telecommunications (Consumer Protection and Service Standards) Act. His Honour considered there to be a reasonable argument that the second respondent performed a function, or exercised a power, or carried out another responsibility for or under the administration of a Commonwealth law or for the purposes of a Commonwealth program. That may be seen from his Honour’s acceptance, following his identification of the relevant function, power and other responsibility, that, “[t]hat is not the difficulty for [the appellants] in seeking to rely on s 28L of the SDA”.
100 The question then arose as to whether the alleged sexual harassment was in the course of performing such a function, or exercising a power, or carrying out another responsibility.
101 The primary judge held:
The difficulty, as with s 28G(1), is that the conduct alleged cannot be regarded as having occurred “in the course of” performing any function, or exercising any power or carrying out any other responsibility for the administration of any Commonwealth program or law by Mr Bose. The conduct pleaded just occurred “in the course of” a dispute between neighbours. I therefore conclude that s 28L has no application to Mr Bose.
102 In determining that question against the appellants, the primary judge made the same error in construing the phrase “in the course of” in s 28L(a) and (b) as was made in respect of s 28G(1) of the SDA. That the sexual harassment occurred in the course of a dispute between neighbours did not require a conclusion that it could not also occur in the course of the matters described in s 28L.
103 There is a reasonable argument that the second respondent’s misuse of power to access the appellants’ private information and his subsequent misuse of that information to sexually harass the appellants was in the course of exercising a power, function or responsibility as described in s 28L.
104 In our opinion, the primary judge erred in holding that the appellants should not be granted leave to commence a proceeding alleging contraventions of s 28L(a) and (b) of the SDA.
Ground 4: Construction and application of s 106(1) of the SDA
105 Ground 4 of the Notice of Appeal asserts that the primary judge erred in the construction and application of the expression “in connection with the employment of the employee” in s 106(1) of the SDA.
106 Section 106(1) provides, relevantly, that where an employee of a person does, in connection with the employment of the employee, an act that is unlawful under Division 3 of Part II, the SDA applies in relation to that person as if that person had also done the act.
107 In Von Schoeler v Allen Taylor and Company Ltd and Others (No 2) (2020) 273 FCR 189, the Full Court held at [59] that for s 106(1) to apply, it is necessary for the person alleging an act of unlawful sexual harassment to prove that: first, the unlawful act was done; secondly, the person who did the unlawful act was the employee of the employer; and, thirdly, the unlawful act was done in connection with the employment of the employee.
108 Once the primary judge concluded that the appellants had failed to establish an arguable case that the second respondent had done an unlawful act in contravention of s 28G(1) and s 28L of the SDA, it necessarily followed that they could not establish an arguable case that s 106(1) applied.
109 However, the primary judge went on to hold that another reason why s 106(1) could not apply was that there was no arguable case that the second respondent had engaged in the alleged sexual harassment, “in connection with the employment of the employee”.
110 The primary judge observed that in Vaughan v Legal Services Board (2009) 25 VR 536, which was concerned with the phrase “in connection with”, the Victorian Court of Appeal held that what was critical was whether the conduct was, “merely incidental and peripheral to the central purpose of the relationship and dealings”. His Honour considered that “in connection” is used in a like way in s 106(1), and concluded that:
Once again, Mr Bose’s pleaded access as an employee facilitated the alleged conduct but that conduct, as pleaded, had nothing to do with his provision of services to them. The conduct can only be viewed as “in connection with” a private dispute between neighbours.
111 The primary judge was dealing with a question of mixed law and fact. His Honour was concerned with construing the width of the statutory phrase “in connection with the employment of the employee”, and then applying the appellants’ factual allegations to that phrase.
112 In South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402, Black CJ and Tamberlin J held at [41]-[42] that the expression “in connection with” is a “broad one of practical application”, and is somewhat wider than the familiar expression “in the course of” used in cases at common law or in workers’ compensation statutes. Their Honours found it could not be said in that case, that the employment, “was unrelated or merely incidental to the sexual harassment of one by the other”. In the same case, Keifel J (as her Honour then was) held that the purpose of s 106(1) required that it be given a “wide operation”, and that it was consonant with the purpose of the provision to read it as, “requiring that the unlawful acts in question be in some way related to or associated with the employment”. As the case demonstrates, the question of whether the alleged sexual harassment was “in connection with the employment” depends on the factual circumstances including the nature of the employment, the nature of any work activities that were involved and whether the employment provided the opportunity for the conduct.
113 The primary judge made a factual finding that the second respondent’s alleged conduct “had nothing to do with his provision of services” to the appellants. This finding answered a question of fact which was very much in contest. In our opinion, in the limited context of an application for leave to commence a proceeding, it was not open to his Honour to make that finding of fact.
114 Ground 4 of the Notice of Appeal must be upheld.
Ground 5: Construction of the term “person” in s 28G and s 28L of the SDA as referring only to an individual
115 Ground 5 of the Notice of Appeal alleges that the primary judge erred in holding that the word “person” in s 28G(1) and s 28L refers only to an individual.
116 It does not appear to have been necessary for the primary judge to have determined that issue of construction. The appellants insist that it was not part of their case that Telstra had provided services to them, and the respondents have not contradicted that submission. The first respondent also submits that this aspect of the primary judge’s reasoning made no difference to the outcome of the case, which reinforces the view that it was unnecessary to decide the issue. It is not apparent that the issue was the subject of any argument.
117 Accordingly, the primary judge’s view that s 28G(1) and s 28L of the SDA does not apply to a body corporate was merely comment. Since the appeal does not turn on the correctness of that view, it is unnecessary and inappropriate to determine whether his Honour’s construction was correct. Otherwise, we would merely be providing an advisory opinion.
118 However, we do not wish our failure to determine the issue to be taken as necessarily indicating agreement with his Honour’s reasoning. There are readily discernible arguments that may support a view that s 28G(1) and s 28L do apply, at least to some extent, to a body corporate. The word “person” is used twice in s 28G(1) and it is arguable that it has different meanings in its different uses. The first use of “person” is in reference to the sexual harasser and the second use is to the victim. It is arguable that while “person” used in reference to a victim can only refer to an individual, in its reference to a sexual harasser, it may refer to an individual or a corporation. It seems possible that if, for example, a corporation publishes an advertisement that depicts a person in a sexually suggestive way, the corporation may sexually harass the person: compare Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; (2021) 307 IR 443. We point out these matters only to indicate that they present yet another arguable question of construction.
119 We have concluded that Grounds 2, 3 and 4 of the Notice of Appeal should be upheld.
120 We have also concluded that the appellants have demonstrated a reasonable argument that the second respondent contravened s 28G(1) and s 28L of the SDA and that, under s 106(1), those provisions apply in relation to Telstra as if Telstra also engaged in the same conduct.
121 The appeal must be allowed and the orders of the primary judge must be set aside.
122 Instead, it will be ordered that the appellants have leave to make an application to the Court alleging unlawful sexual harassment by Telstra and the second respondent.
123 The respondents will be ordered to pay the appellants’ costs of the application for leave to appeal and the appeal.
Associate:
