FEDERAL COURT OF AUSTRALIA

Gauci v Kennedy [2007] FCA 1051

PRACTICE AND PROCEDURE – appeal from decision of Federal Magistrate summarily dismissing application – principles relating to summary dismissal – whether case so clear as to justify summary dismissal

DISCRIMINATION LAW – sexual harassment – whether his Honour erred in his determination that the alleged acts against the appellant by the first respondent could not amount to sexual harassment – vicarious liability of second respondent for conduct of first respondent not considered by court below – interpretation of s 28A Sex Discrimination Act 1984 (Cth)

Held: The case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Remitted to the Federal Magistrates Court to the extent that the Federal Magistrate found that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant.

Sex Discrimination Act 1984 (Cth) Pt II Div 3

Federal Magistrates Court Rules (FMCR) r 13.10

Cooke v Plauen Holdings [2001] FMCA 91 cited

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited

Doyle v Riley (1995) EOC 92-748 cited

Gauci v Kennedy [2005] FMCA 1505 related

Gauci v Kennedy [2006] FCA 869 related

Obieta v New South Wales Dept of Education and Training [2007] FCA 86 cited

Rana v University of South Australia (2004) 136 FCR 344 cited

re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 cited

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 cited

PETER JOHN GAUCI v CRISTELLE JANE KENNEDY AND THE UNIVERSITY OF QUEENSLAND

QUD56 OF 2006

COLLIER J

13 JULY 2007

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of Jarrett FM delivered on 12 October 2005, that the appellant’s claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside.

3.                  The application be remitted to the Federal Magistrates Court for directions and determination.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Jarrett FM of 12 October 2005 (Gauci v Kennedy [2005] FMCA 1505) where his Honour summarily dismissed a claim of Mr Gauci (“the appellant”) for relief against the second respondent for a breach of Pt II Div 3 Sex Discrimination Act 1984 (Cth) (“SD Act”).

2                     The claim was dismissed by the learned Federal Magistrate pursuant to Federal Magistrates Court Rules (FMCR) r 13.10, which reads as follows:

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:

(a)   no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or

(b)  the proceeding or claim for relief is frivolous or vexatious; or

(c)   the proceeding or claim for relief is an abuse of the process of the Court.

3                     On 6 July 2006 I granted the appellant leave to file and serve out of time a notice of appeal from the decision of Jarrett FM, and leave to appeal from the decision of Jarrett FM: Gauci v Kennedy [2006] FCA 869. The background and facts of this matter are set out in that decision, and I explained in some detail principles referable to summary dismissal. It is unnecessary to repeat those principles here, other than to acknowledge that the power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases.

Hearing before the Federal Magistrate

4                     In relation to the application for summary dismissal by the second respondent, the learned Federal Magistrate recognised the caution with which such applications should be approached. His Honour examined the relevant legislation, in particular ss 5, 14, 28A, 28F, 94, 105 and 106 of the SD Act.

5                     His Honour was satisfied that:

·                    no conduct of the second respondent constituted sexual harassment of the appellant; and

·                    while conduct of the first respondent could amount to harassment of the appellant within the ordinary meaning of the word, that conduct was not enough to establish a breach of the SD Act. Therefore even assuming that the first respondent was at all material times an employee of the second respondent, this aspect of the claim against the second respondent was bound to fail.

6                     However, his Honour did not accept the submissions of the second respondent that the appellant’s claim of sex discrimination should be summarily dismissed, and this aspect of the appellant’s claim remains currently before his Honour.

7                     His Honour made the following substantive orders:

(1)       That the applicant’s claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act1984 be dismissed; and

(2)       That otherwise the second respondent’s application filed on 1 November 2004 be dismissed.

Appeal

8                     At the hearing before me the second respondent was represented by solicitors. Neither the appellant nor the first respondent were legally represented.

9                     A number of the submissions of the parties went to the issues for determination before the Federal Magistrate rather than the issue of whether the learned Federal Magistrate was correct to summarily dismiss the application. The question before me is whether any submissions made at the appeal persuade me that this matter should not be revisited in full by the Federal Magistrates Court.

10                  In Rana v University of South Australia (2004) 136 FCR 344 in considering an appeal from a decision of a Federal Magistrate to summarily dismiss an application, Lander J made a number of observations which are applicable to the case before me. His Honour said at 354-355:

“The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action... There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. ...

The Court, on hearing an application under FMC Rules 4.04 (1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action - not that on the evidence presently available the applicant will succeed on that cause of action.

... (Summary dismissal) should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.”

Notice of appeal and submissions of the appellant

11                  The appellant’s grounds of appeal from the decision of Jarrett FM are more akin to submissions than grounds of appeal. I note the disadvantage of a self-represented litigant in relation to court proceedings (cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 514). To the extent that I can correlate the appellant’s grounds of appeal and submissions at the hearing with his Honour’s reasons for judgment, the following is apparent.

12                  First, the appellant does not appear to cavil with the findings of his Honour that:

·                    there are no facts alleged by the appellant that could amount to any sexual harassment of the appellant by or on behalf of the second respondent or any of Professor Gardner, Dr Bowey, Marnie King, Luisa Nocella, Ann Stewart, Dr Tony Arklay and Roger Byrom; and

·                    in asking the appellant to read the first respondent’s complaint of sexual harassment against him, or by failing to dismiss the first respondent’s complaint summarily without calling for his response, the conduct of the second respondent did not constitute sexual harassment of him.

13                  Accordingly, I understand that the appellant does not appeal against this aspect of his Honour’s decision.

14                  Second, the appellant complains in his notice of appeal about the approach taken by Jarrett FM to the appellant’s claim concerning sex discrimination against him. Specifically, the appellant states in his notice of appeal:

“While the court has not dismissed my complaint of discrimination against the second respondent, it appears perhaps by virtue of my lack of clarity, to have missed important elements of it.”

15                  The notice of appeal then contains several pages of submissions in relation to the issue of alleged sex discrimination by the second respondent (paras 7-12). The appellant is not however appealing against this part of the decision of his Honour - indeed, his Honour found in favour of the appellant on this issue in the context of the summary dismissal application brought by the second respondent: Gauci [2005] FMCA 1505 at [55]-[64]. In my view the issues raised by the appellant in paras 7-12 of his notice of appeal are not properly the subject of appeal, and are not relevant to the matter before me.

16                  Finally however, the appellant does appeal against the finding of his Honour that the conduct of the first respondent was not sexual harassment of the appellant, and accordingly that even assuming that the first respondent was at all material times an employee or servant of the second respondent, there were no facts alleged that would or could amount to sexual harassment by the first respondent of the appellant (Gauci [2005] FMCA 1505 at [68]).

17                  In relation to this issue, his Honour found as follows:

[69] “His evidence is that the first respondent persistently pursued his romantic attention. There is no claim in his material, however, that the first respondent subjected him to an unwelcome sexual advance or made to him an unwelcome request for sexual favours. At best, she asked him to go for coffee on two occasions, pizza on one occasion and to a movie on a fourth occasion. Apart from the comment made soon after their first meeting that the applicant had nice eyes, the conversation between them was unremarkable.

[70] The making of a complaint of sexual harassment against the applicant to the second respondent cannot in the circumstances relied upon by the applicant, amount to sexual harassment for the purposes of the SDA. It might be the case that the first respondent was intent on pursuing an intimate, indeed sexual, relationship with the applicant and when he spurned her she became difficult - but that is not prohibited by the Act. It might be the case that the first respondent's actions could amount to harassment within the ordinary meaning of that word, but that is not enough to establish a breach of the SDA.

[71] Thus, even making the assumptions I have set out above in favour of the applicant, it seems to me that this aspect of the claim against the second respondent is bound to fail.”

18                  The grounds of appeal in this respect are that:

1.                  his Honour erred in his determination that the alleged acts against him by the first respondent did not amount to sexual harassment; and

2.                  his Honour did not properly interpret s 28A SD Act.

Submissions of the respondents

19                  In response the second respondent submitted that:

·                    Jarrett FM was correct in finding that the alleged conduct of the first respondent was not capable of amounting to sexual harassment within the meaning of s 28A SD Act, and accordingly there was no conduct in respect of which the second respondent could be liable

·                    even if that were not so, the learned Federal Magistrate’s orders should be upheld on the alternative basis that it is not alleged and it is not open on the facts to conclude that the university is vicariously liable for the alleged conduct of the first respondent under s 106 SD Act

·                    the other matters that the applicant seeks to raise in the appeal are not properly the subject of the appeal.

20                  The proceedings before me do not directly involve the first respondent. However the first respondent has also filed written submissions before me, in which she denies the alleged unlawful sexual harassment and submits that as the complaint of sexual harassment against her has been properly dismissed by Jarrett FM, there is no conduct in respect of which the second respondent can be liable.

Consideration of the issues

21                  While I concur with the observations of his Honour that the conduct of the first respondent could constitute harassment, I disagree with his Honour’s conclusion in Gauci [2005] FMCA 1505 at [70] that the harassment was clearly such that it did not breach the SD Act. “Sexual harassment” is defined in s 28A of the Act as follows:

(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 that the person harassed would be offended, humiliated or intimidated.

(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.

22                  Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238], Cooke v Plauen Holdings [2001] FMCA 91 at [25]. It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, “unwelcome conduct of a sexual nature in relation to the person harassed”. Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).

23                  It may well be that the conduct of the first respondent was not sexual harassment; further it may be the case that, for reasons submitted by the second respondent, any liability for the conduct of the first respondent could not be visited on the second respondent. Indeed, the first respondent claimed from the bar table before me that she was not an employee of the second respondent at the material time. However evaluating comprehensive arguments and evidence of the parties to determine whether the conduct of the first respondent did constitute sexual harassment and if so, whether the second respondent could be liable for the conduct of the first respondent (an issue not canvassed by his Honour other than to formulate his reasons on the assumption that the first respondent was an employee of the second respondent at all material times) would require a full hearing of the matter. As Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:

…once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

24                  Consideration of the issue whether the conduct of the first respondent did constitute sexual harassment within the meaning of s 28A SD Act did, in my view, give rise to a real question to be determined between the parties. In this respect, I repeat the observations I made in Gauci [2006] FCA 869 at [44].

Conclusion

25                  Having heard the submissions of the parties I consider that the case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Accordingly, in my view the learned Federal Magistrate should not have summarily dismissed the applicant’s claim against the second respondent in respect of Pt II Div 3 SD Act, to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant.

26                  The matter should be remitted to the Federal Magistrates Court to be heard in full by his Honour and determined on the submissions of the parties at trial.

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of Jarrett FM delivered on 12 October 2005, that the appellant’s claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside.

3.                  The application be remitted to the Federal Magistrates Court for directions and determination.

Associate:

Dated:         13 July 2007