FEDERAL COURT OF AUSTRALIA

Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381

HUMAN RIGHTS – written complaint lodged with Human Rights and Equal Opportunity Commission alleging unlawful discrimination – termination of complaint pursuant to s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – application made to this Court for relief pursuant to s 46PO of the HREOC Act – different parties named to complaint – in part different conduct the subject of the terminated complaint – question of striking out claims based on different parties and the different conduct

PRACTICE AND PROCEDURE – summary judgment application and strike out application – relevant principles for each – claim against non-parties to HREOC complaint before the Commission struck out – elements of claim which were not the same or arising out of the same or substantially the same acts also struck out – leave to amend

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46P(1), 46PD, 46PH, 46PH(1)(i), 46PH(2), 46PO, 46PO(3), 46PO(3)(a), 46PO(3)(b)

Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2)

Sex Discrimination Act 1984 (Cth) ss 5(1), 17

Federal Court Rules O 4 r 3(b), O 11 r 2, O 11 r 5, O 11 r 16, O 42, O 81, O 81 r 4(2), O 81 r 5

Allstate Life Insurance Co v ANZ Banking Group Ltd [1994] FCA 636

Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd. (1990) 169 CLR 279

Everett v Ribbands (1952) 2 QB 198 at 206

Grigor-Scott v Jones [2008] FCAFC 14

Jadwan Pty Ltd v Middletons (A Firm) [2007] TASSC 74

Jones v Toben [2002] FCA 1150

Middlesex County Council v Nathan (1937) 2 KB 272

Rana v Commonwealth of Australia [2008] FCA 907

Re Vandervell’s Trusts (No 2) [1974] 3 WLR 256

Sheikholeslami v Brungs [2007] FCA 556

Thomson v Orica Australia Pty Ltd [2002] FCA 939

Western Bank of City of New York v Perez, Triana & Co [1891] 1 QB 304

DR LEONIE CARMEN READING v PARTNERSHIP OF WESTERN DIAGNOSTIC PATHOLOGY, DR VINCENT CARUSO, DR MICHAEL E ARMSTRONG, DR BRUCE LATHAM, DR GEORGE P CRAWFORD, DR KEVIN TROWN, DR ANDREW MCQUILLAN, DR SUKEERAT RUBA, DR PETER GARCIA WEBB and DR KENNETH MITCHELL

WAD 94 of 2008

MCKERRACHER J

9 September 2008

PERTH

THE COURT ORDERS THAT:

1.                  The application against the third and fourth respondents is dismissed.

2.                  There will be leave to file and serve within 6 weeks of this order a fresh amended points of claim.

3.                  In relation to any complaint of breach of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), specific dates and specific persons are to be either identified or not pleaded. 

4.                  The topics that have been struck out as going beyond the complaints raised in the Commission are not to be pleaded again. 

5.                  Any submissions from any party in relation to costs is not to exceed two pages in length and is to be filed and served within 10 days. 

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant, Dr Reading is a histopathologist and a partner in the business Western Diagnostic Pathology (WDP).  WDP operates in Western Australia providing pathology and medical diagnostic services to doctors, hospitals and commercial clients.  Dr Reading became a partner in 1989.  There are currently 11 such partners. 

2                     The central elements of her complaint are that in about 2005 WDP adopted a ‘differential remuneration’ policy that involved different levels of remuneration for partners.  Dr Reading says that an attempt was made to reduce her remuneration but she stopped this from occurring.  Dr Reading contends that the structure is ‘open to gross unfairness and corruption’ and is a fertile ground for discrimination to occur.  She points to various instances where she says that her male counterparts have received more favourable financial consideration than she has.  Dr Reading cites other examples of discrimination in the form of discriminatory work hours and rosters involving very heavy and stressful duties, denial of her request for part-time work, being forced to work fulltime or to resign, being allocated duties that were normally performed by junior staff, being unfairly treated on leave allocations and being excluded from social activities conducted by male partners. 

3                     Dr Reading also points to the lack of opportunities for higher duties such as the position of head of the department, being undermined professionally and being subjected to intimidation about work performance, flexibility requests and work hours.

4                     She claims damages against all respondents.

The Current Motions

5                     The third and fourth respondents seek summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act) on the basis that the claim against them has no reasonable prospects of success. 

6                     The first respondent by motion dated 11 June 2008 sought to strike out the application brought by Dr Reading pursuant to O 11 r 16 of the Federal Court Rules (the Rules) or alternatively sought orders that Dr Reading be required to file a points of claim.  When the matter was last before me, I directed that Dr Reading file a points of claim designed to clearly set out precisely what unlawful acts she relied upon in support of her cause of action.  The first, fifth and tenth respondents now seek an order that certain paragraphs of Dr Reading’s points of claim be struck out.  In the alternative, those respondents seek an order that the applicant file an amended points of claim. 

7                     Dr Reading clearly feels aggrieved.  On the other hand, the proceedings which Dr Reading has pursued have become complex and costly for all of the respondents.  Serious allegations are made.  To some extent the procedural difficulties can be attributed to the fact that Dr Reading is acting in person.  The determination of these motions does require a balancing.  On the one hand there are the respondents’ concerns as to exposure to serious accusations against them (and the cost in defending themselves in relation to those accusations).  On the other hand there is a need to exercise some restraint as to the expectations of a litigant in person in relation to law and procedure. 

8                     The dispute must be, at least on its face, highly amenable to the benefits of mediation. 

Statutory Framework

9                     By s 46P(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), a written complaint may be lodged with the Human Rights and Equal Opportunity Commission (the Commission) alleging unlawful discrimination.  Where such a complaint is made, the Commission must refer it to the President of the Commission (s 46PD).  If a complaint is referred to the President, the President must inquire into it and attempt to conciliate it.  The President in turn is empowered to terminate a complaint on any one of a number of grounds set out in s 46PH of the HREOC Act.  One of those grounds is that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1)(i)).  In circumstances where the President decides to terminate a claim, the President must notify the complainants in writing of that decision and the reasons for it (s 46PH(2)).  There is no suggestion in these proceedings that the Commission has not carried out its functions in accordance with the obligations under the HREOC Act. 

10                  Where a termination of that nature has occurred, there is provision under s 46PO of the HREOC Act for an application to be made to this Court or to the Federal Magistrates Court.  Section 46PO relevantly provides as follows:

(1)       If:

(a)        a complaint has been terminated by the President under section 46PE or 46PH; and

(b)       the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)       The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)       The unlawful discrimination alleged in the application:

(a)        must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)       must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.  (emphasis added)

11                  The expression ‘unlawful discrimination’ is defined in s 3 of the HREOC Act as meaning:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

(aa)      Part 4 of the Age Discrimination Act 2004; or

(a)        Part 2 of the Disability Discrimination Act 1992; or

(b)       Part II or IIA of the Racial Discrimination Act 1975; or

(c)        Part II of the Sex Discrimination Act 1984;

and includes any conduct that is an offence under:

(ca)      Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or

(d)       Division 4 of Part 2 of the Disability Discrimination Act 1992; or

(e)        subsection 27(2) of the Racial Discrimination Act 1975; or

(f)        section 94 of the Sex Discrimination Act 1984.

12                  Order 81 of the Rules provides for applications alleging unlawful discrimination as follows:

4          Application of Order 81

(1)       This Order applies to a proceeding in the Court alleging unlawful discrimination.

(2)       The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, to a proceeding in the Court alleging unlawful discrimination.

5          Commencement of proceeding

(1)       A proceeding alleging unlawful discrimination must be commenced by filing an application in accordance with Form 5.

(2)        The application must:

(a)        be accompanied by a claim in accordance with Form 167; and

(b)       include details of any claim that is made in addition to the allegation of unlawful discrimination.

6          Copy of application to be given to Commission

At least 5 days before the date fixed for the directions hearing for the application, the applicant must give the Commission:

(a)        a stamped copy of the application, showing the date, time and place of the directions hearing; and

(b)       a copy of the claim mentioned in paragraph 5 (2) (a).

13                  Section 5(1) of the Sex Discrimination Act 1984 (Cth) (SDA) identifies unlawful sex discrimination to constitute less favourable treatment of the aggrieved person on the grounds of:

(a)        the sex of the aggrieved person;

(b)        a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)        a characteristic that is generally imputed to persons of the sex of the aggrieved person;

14                  Generally, allegations of unlawful conduct under s 5(1) SDA are described as ‘direct discrimination’.  By subs (2), indirect discrimination is described:

(2)       For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

15                  The question then, is whether the discrimination has been in a manner proscribed by the SDA.  The relevant provisions for the purposes of Dr Reading’s complaint are those set out in s 17 of the SDA which deals with discrimination in partnerships.  Section 17 SDA provides as follows:

(1)       It is unlawful for 6 or more persons, being persons who are proposing to form themselves into a partnership, to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:

(a)        in determining who should be invited to become a partner in the partnership; or

(b)       in the terms or conditions on which the person is invited to become a partner in the partnership.

(2)       It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:

(a)        in determining who should be invited to become a partner in the partnership; or

(b)       in the terms or conditions on which the person is invited to become a partner in the partnership.

(3)       It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a partner in the partnership on the ground of the partner’s sex, marital status, pregnancy or potential pregnancy:

(a)        by denying the partner access, or limiting the partner’s access, to any benefit arising from being a partner in the partnership;

(b)       by expelling the partner from the partnership; or

(c)        by subjecting the partner to any other detriment.

16                  And finally, on a pleading point, O 11 r 5 of the Rules provides:

A party need not plead a fact if:

(a)        the fact is presumed by law to be true; or

(b)       the burden of disproving the fact lies on the other party;

except so far as may be necessary to meet a specific denial of that fact by the other party in his pleading or failure to plead such fact is likely to cause the other party to be taken by surprise. 

Third and Fourth Respondents’ motion

17                  The third respondent, Dr Armstrong and the fourth respondent, Dr Latham have applied for summary judgment pursuant to s 31A of the Act.  Under s 31A, the Court is empowered to give judgment for a respondent to a proceeding where the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting a proceeding.  In considering whether a party has a reasonable prospect of success, the Court need not be satisfied that the proceeding is hopeless or bound to fail (s 31A(2)).  In Rana v Commonwealth of Australia [2008] FCA 907 at [49], Lander J said:

Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.  It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298.  So much is supported by the Attorney-General’s second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A.  He said:

The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.  It is appropriate that this provision is of general application.  It will be a useful addition to the courts’ powers in dealing with any unsustainable case.

18                  Relevantly, s 46PO deals with making an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.  It is contended for Dr Armstrong and Dr Latham that a plain reading of s 46PO of the HREOC Act makes it clear that as a precondition to the accrual of jurisdiction by this Court, the complaint made in the Court must be limited to persons who were respondents to the terminated complaint before the Commission. 

19                  Dr Armstrong and Dr Latham were not named as respondents to the complaint in the Commission.  It follows, they say, that the Court has no jurisdiction to hear Dr Reading’s application against them. 

20                  In Grigor-Scott v Jones [2008] FCAFC 14, the Full Court observed at [18]-[20]:

18.       Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination.  The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made.  It only lies in respect of the subject matter of the complaint to the Commission.  Importantly, for the purpose of this appeal, it only lies against the respondents to the terminated complaint.  Also importantly, the application commencing the proceeding upon the cause of action must be brought within 28 days after the date of issue of the s 46PH(2) notice, or such later time as the Court allows.

19            The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents.  It is easy to understand why that is so.  The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court.  In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

20            The provisions briefly summarised above clearly assume that there is a respondent to the relevant complaint.  Under s 3 of the Commission Act, respondent in relation to a complaint means the person or persons against whom the complaint is made.  Clearly enough, therefore, when a complaint is lodged pursuant to s 46P of the Commission Act, the complaint must be against a person.  A person, of course, may be an individual or some other entity that has legal personality.  That is to say, there must be someone to respond to the complaint, being the person whose acts, omissions or practices are said to be unlawful under, relevantly, the Discrimination Act.  That is not surprising having regard to the requirements of s 46PF that the President attempt to conciliate the complaint.  The President must be able to identify a legal person who could participate in such a conciliation.  (emphasis added)

At [69] it was said:

Section 46PO(1) requires two events to occur before an affected person may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.  First, a complaint must have been terminated.  Secondly, the President must have given notice under s 46PH(2).  If both those events occur, then an affected person, as defined in the Commission Act, may bring a proceeding in the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination against the respondents to the terminated complaint.  The section does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint.  Section 46PO(3) makes it clear that the unlawful discrimination that is alleged in the proceeding must be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint.  Thus, it is a condition of s 46PO that the application that is authorised by s 46PO be brought against the respondent to the complaint.  (emphasis added)

21                  As observed by the Full Court at [19], the intention is to ensure the Commission is always the filter for claims for unlawful discrimination before such claims are brought to the courts.

22                  The notice and letter terminating the complaint and giving the President’s reasons make it clear that Dr Armstrong and Dr Latham were not respondents to the complaint before the Commission.  Most doctors were not referred to in the way that Dr Toben was referred to in Jones v Toben [2002] FCA 1150 on which the Full Court in Grigor-Scott [2008] FCAFC 14 at [73]-[74] said:

In Jones v Toben Mr Jones sought to enforce determinations by a commissioner in the following terms:

“1.        I find the complaint substantiated.

  2.       I declare that the respondent Dr Frederick Toben, representing the Adelaide Institute, has engaged in conduct rendered unlawful by section 18C of this Act in the publication of material racially verificatory of Jewish people, on the Adelaide Institute’s Internet site…

  3.       I declare that the respondent Dr Federick Toben, representing the Adelaide Institute, should remove the contents of the Adelaide Institute web site from the World Wide Web and not re-publish the content of that web site in public elsewhere.”

The significant difference between the determination that was the subject of the proceeding in the Federal Court in that case, on the one hand, and the manner in which the President dealt with Mr Jones’ complaint in the present case, on the other hand, is that the President did not at any stage identify Mr Grigor-Scott as the respondent to the complaint lodged by Mr Jones.  On the contrary, the President at all times, while acknowledging correspondence from Mr Grigor-Scott, referred to the ‘Bible Believers’ Church’ or the ‘Church’ as the respondent to the complaint.  As indicated above, there is no legal entity known as Bible Believers’ Church. 

23                  Dr Reading herself acknowledges in her claim, Dr Armstrong and Dr Latham left the practice in April 2006 and were certainly not members of the Partnership at the time Dr Reading brought the complaint before the Commission in December 2006. 

24                  The proposition raised by Dr Reading, however, is that by naming WDP as the respondent in the Commission, she effectively encompassed Dr Armstrong and Dr Latham even though at the time of lodging her complaint they were no longer partners of WDP. 

25                  Order 42 of the Rules would permit the action to have been commenced against WDP.  The extent to which, if any, joint and several liability may or may not apply as between parties would then be determined by substantive law including legislation governing the dealings of partnership in the context of potential liability, inter alia, under the HREOC Act.  It is true that one who sues partners in the name of their firm is in reality suing them individually just as much as if the names of the partners were all set out:  Western Bank of City of New York v Perez, Triana & Co [1891] 1 QB 304 at 314 per Lindley LJ.  In Jadwan Pty Ltd v Middletons (A Firm) [2007] TASSC 74, Evans J observed at [20]:

A partnership is not a distinct legal entity.  The members of the partnership do not form a collective whole, distinct from the individuals who make up the partnership, Rose v Federal Commissioner of Taxation (1951) 84 CLR 118 at 124.  So as to avoid the difficulty of naming all the members of a partnership that sues or is sued, court rules commonly provide that a partnership may sue or be sued in its firm name, and that when a partnership is so sued, the service of one partner shall be the service of all partners.

26                  However, Dr Armstrong and Dr Latham were not members of WDP at the date of the complaint.  The surrounding facts appear to make it clear that the complaint was against the members of the Partnership as it was constituted at the date of the making of the complaint rather than against previous partners of the firm against whom (in the case of Dr Armstrong and Dr Latham), no specific complaint was raised.  It had always been open to Dr Reading to join such retired partners by name if it was intended that the complaint should be raised expressly against them but she did not do so. 

27                  Dr Reading submits that because complaints to the Commission included incidents which date from mid-2005 to December 2006, Dr Armstrong and Dr Latham are responsible for any unlawful character of those incidents as they were partners at the time.  It is contended that in effect Dr Armstrong and Dr Latham were respondents of the Commission claim even though they were not named in that capacity.  She relies in effect upon two matters to support that contention.  First, Dr Reading relies on a number of documents referred to in her affidavit of 24 June 2008 in which references are made to Dr Armstrong and Dr Latham.  One is a letter from Dr Reading’s then solicitors dated 27 November 2006 to the Partnership.  In that letter can be found references to Dr Armstrong and Dr Latham.  Apparently a letter in similar terms was made available to Dr Armstrong and Dr Latham.  That reference, in my view, does not, without more, amount to those persons being respondents in the Commission.  In Dr Reading’s complaint lodged with the Commission electronically on Sunday, 31 December 2006, she describes circumstances which had ensued over a period of time saying that the events being complained about were ‘long standing last 2-3 years’ and ‘worse this year January to December’.  Again there is no specific reference to Dr Armstrong and Dr Latham in this letter but Dr Reading would rely on the fact that the period in respect of which the complaints were raised, encompasses in part a period in which they were members of the Partnership.  In another document, an email dated Tuesday, 31 October 2006 the position is the same.  There is no specific reference to Dr Armstrong and Dr Latham in that email but the complaints which it raises, while not descending to specifics in any detail, does make reference to her long period of tenure as a partner. 

28                  The other general proposition advanced by Dr Reading is that Dr Armstrong and Dr Latham assisted with the investigation by the Commission of her complaints after the complaint was lodged.  Again however, answering the Commission’s questions, giving assistance and providing information do not amount to the same thing as being a respondent to the complaint. 

29                  It is clear in my view that the communications to which I have referred above including Dr Reading’s email of 31 October 2006 and the letter sent on her behalf on 27 November 2006 were directed to the then current members of the Partnership.  Not only had Dr Armstrong and Dr Latham ceased to be members of that Partnership in April 2006, but it was contended for them, without objection, that they were never parties to the Partnership Deed which is referred to in the 27 November 2006 letter. 

30                  Dr Armstrong and Dr Latham point to the fact that even if the complaint filed in the Commission was intended to be directed to Dr Armstrong and Dr Latham as well as WDP, there is no suggestion that they were served with a copy of the complaint, that they instructed the firm of solicitors representing WDP (they have instructed other solicitors), that they accepted any responsibility for or paid any contribution to WDP’s legal expenses or otherwise participated or had any involvement in opposing the complaint. 

31                  In my view there is no basis for a conclusion that Dr Armstrong and Dr Latham were individual respondents to the Commission proceedings.  Indeed, the conclusion can only be to the contrary. 

32                  Dr Reading has proposed in recognition of the fact that WDP alone was the respondent in the Commission that she would amend her application in this Court so as to delete the reference to the individual respondents.  In doing so, she makes it clear that she apprehends that they would remain personally liable but acknowledges that the proceedings in this Court may be issued only as against the respondent in the Commission.  The proposal she raises to remove Dr Armstrong and Dr Latham from the list of individual respondents in these proceedings does not address the fundamental jurisdictional point of whether or not they, as individuals, were respondents to the Commission complaint and thus whether they are now amenable to the jurisdiction of this Court in these proceedings.  They were not respondents.  The only appropriate solution is to allow the application of Dr Armstrong and Dr Latham for the proceedings against them to be dismissed pursuant to s 31A of the Act. 

The Eighth Respondent

33                  Dr Ruba, another female partner and the eighth respondent had also been one of the partners of WDP.  Dr Reading accepts, as I understand it, that Dr Ruba did not in any real practical, or personal sense participate in any allegedly unlawful conduct, indeed to the contrary, that she was supportive of Dr Reading.  It is also clear that Dr Ruba had ceased being a partner long before the complaint was filed in the Commission.  It is by no means clear that she was a partner at the time of any alleged breach or breaches by other partners. 

34                  There was no formal motion in relation to Dr Ruba but it will be clear, no doubt, from my reasons that in my view she should not have been joined to the proceedings.  Similar observations may be made in respect of the ninth respondent. 

The Partnership’s Motion

35                  The motion raised by the first, fifth and tenth respondents may be taken as a motion to strike out the ‘statement of claim’ of Dr Reading and to strike out or strike out substantial parts of the points of the claim which Dr Reading has subsequently filed. 

36                  It is desirable to retrace the history a little to consider the arguments relevant to this motion.  As has been outlined, on 31 December 2006 Dr Reading filed a complaint against WDP in the Commission alleging discrimination on the grounds of sex.  The Commission complaint alleges that WDP had discriminated against Dr Reading on the ground of sex in that it had:

(a)        directly discriminated against her in relation to leave allocation;

(b)        subjected her to intimidation and harassment in relation to work performance and work hours;

(c)        abused and intimidated her in respect of a request for a day of emergency leave;

(d)        excluded her from social activities;

(e)        subjected her to unfair working demands;

(f)         requested to perform junior staff duties;

(g)        not provided flexible working hours to Dr Reading;

(h)        expected Dr Reading to work long hours;

(i)         subjected Dr Reading to unfair discriminatory work rostering;

(j)         refused Dr Reading’s request for a four day week;

(k)        paid Dr Reading less remuneration than male pathologists; and

(l)         forced Dr Reading to work fulltime or resign.

37                  Following the lodging of the complaint, WDP through its solicitors received correspondence from the Commission advising of the complaint.  This was constituted by a letter of 22 June 2007 and advising that the complaint alleged sex discrimination in a partnership under the terms of the SDA.  That letter read:

22 June 2007

…

Re:  Complaint by Ms Leonie Reading against Western Diagnostic Pathology

I have received a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOC Act”) from Ms Leonie Reading against Western Diagnostic Pathology (“the Partnership”) alleging sex discrimination in a partnership under the terms of the Sex Discrimination Act 1984 (“the SDA”).

I note that both parties have attempted to resolve this complaint, however, to date the parties have not been able to resolve Ms Reading’s concerns.  Therefore, I am writing to you to seek a response in relation to Ms Reading’s complaint. 

Ms Reading states that she is a senior partner of the Partnership and has been with the Partnership for nearly 20 years.  Ms Reading states that over the last three years of her partnership she has been treated less favourably than her male colleagues in that she has been:

Ø      required to work longer hours than her male colleagues;

Ø      paid less than her male colleagues, including male colleagues who are junior to her;

Ø      denied the opportunity to work a four day week, despite this flexibility being granted to some of her male colleagues; and

Ø      requested to perform junior staff duties.

I have attached a copy of Ms Reading’s complaint, together with copies of sections 5, 8 and 17 of the SDA which the complaint suggests may have been contravened. 

Under the HREOC Act, the President is required to inquire into complaints and attempt to resolve complaints by conciliation.  Enclosed with this letter is information on the Commission’s complaint procedures including specific information on the conciliation process.  Conciliation is a process conducted to effect a settlement of the complaint that is mutually acceptable to all parties. 

If you wish to discuss possible resolution of this complaint by conciliation, please contact the officer who is handling the matter for me on the phone number provided at the end of this letter.

At this stage, I am seeking your assistance as part of my inquiry into the complaint, I therefore request a response to the allegations in general.  In particular, I also request your comments on the following matters:

1.         Please provide details of Ms Reading’s partnership history with the Partnership including details in relation to her position, duties and dates of service.  Please provide all relevant documentation including a copy of the partnership deed.

2.         What are the hours Ms Reading is required to work?  What are the hours Ms Reading’s male colleagues are required to work?  If Ms Reading is required to work longer hours than her male colleagues, what are the reasons for this?  In particular, please comment on Ms Reading’s claim that she is required to work longer hours than her male colleagues.  Please provide all relevant documentation. 

3.         What is Ms Reading’s rate of pay?  Is Ms Reading paid less than her male colleagues?  If so, what are the reasons for this?  Please comment on Ms Reading’s claim that she is paid less than her male colleagues, including male colleagues who are junior to her.  Please provide all relevant documentation.

4.         Did Ms Reading apply to work a four day week?  If so, what was the outcome of her request?  If Ms Reading was denied the opportunity to work a four day week, what were the reasons for this?  Do some of Ms Reading’s male colleagues work a four day week?  If so, what are the reasons for this?  Please provide all relevant documentation. 

5.         Has Ms Reading been requested to perform junior staff duties?  If so, what duties was she asked to perform and what were the reasons for this?  Have any of Ms Reading’s male colleagues been requested to perform junior staff duties?  If so, what duties were they asked to perform and what were the reasons for this?  Please provide all relevant documentation. 

6.         Did Ms Reading make any complaint (verbal or written) to the Partnership about the alleged events described in her complaint?  If so, please advise to whom the complaint was made and whether any action was taken to address the complaint, including what steps were taken to investigate the complaint and the outcome of this.  Please provide copies of any relevant documentation.

7.         Please provide an outline of the steps taken by the Partnership to promote a work environment that incorporates its obligations under the SDA.  Please provide details of any sex discrimination policies and procedures adopted by the Partnership and the date these were adopted. 

I am also prepared to consider anything you may wish to put as to whether I should continue this inquiry. 

As indicated above, under the HREOC Act, the President is required to investigate this complaint and, where appropriate, try and resolve the complaint by conciliation.  If the matter cannot be settled or is terminated on some other ground, the complainant may then make an application to the Federal Court of Australia or the Federal Magistrates’ Court for the court to hear the allegations of unlawful discrimination. 

It may be necessary for me, in carrying out the President’s statutory functions, to provide your response, or relevant parts of it, to the complainant or to include your response in a report to the Court if the matter is not conciliated or is terminated

I would appreciate your response within twenty-one (21) days of receipt of this letter. 

If you have any questions about this matter please contact … on … (direct), who is handling this matter on the President’s behalf. 

Thank you for your cooperation.

…

38                  It is to be noted that the 22 June letter did attach the actual complaint by Dr Reading.  I will not repeat that complaint in full but I observe that the 22 June letter from the Commission was clearly giving only a synopsis of the original complaint. 

39                  As also outlined above, after an investigation was conducted, on 10 April 2008 the President of the Commission terminated the complaint pursuant to s 46PH(1)(i) of the HREOC Act on the ground that there was no reasonable prospect of the complaint being settled by conciliation. 

40                  Subsequently, Dr Reading filed a Form 5 and Form 167 as prescribed by O 81 of the Rules seeking damages from the Partnership and the other named respondents on the basis of unlawful discrimination. 

41                  The first, fifth and tenth respondents’ motion to strike out Dr Reading’s application is based on the following grounds:

(a)        the unlawful discrimination alleged in the application is not the same or the same in substance as the unlawful discrimination that was the subject of the terminated complaint in the Commission;

(b)        the unlawful discrimination alleged in the application to the Court does not arise out of the same or substantially the same acts, omissions and practices that were the subject of the terminated complaint as required by s 46PO(3)(b) of the HREOC Act;

(c)        the application is contrary to O 11 r 2 of the Rules in that it contains evidence (both relevant and irrelevant) and extensive legal argument but does not contain a statement in summary form of the material facts on which Dr Reading relies;

(d)        the alleged unlawful conduct in the application to the Court does not disclose a reasonable cause of action or other cause appropriate to the nature of the pleadings as required by O 11 r 16 of the Rules; and

(e)        Dr Reading has failed to identify the ‘Act’ and the provisions of the ‘Act’ under which she complains and the sections of the legislation on which she relies to sustain her allegations of unlawful conduct as required by O 4 r 3(b) of the Rules. 

42                  Although O 81 of the Rules governs applications alleging unlawful discrimination, other Orders of the Rules also apply to such applications providing they are not inconsistent with O 81 (O 81 r 4(2)).  While an application under O 81 is not a pleading in the strict sense (Thomson v Orica Australia Pty Ltd [2002] FCA 939 and Sheikholeslami v Brungs [2007] FCA 556), nevertheless, it remains a fundamental requirement of procedural fairness that any respondent should be provided with a claim which clearly and concisely sets out allegations against the respondent with sufficient particularity to permit a defence:  Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd. (1990) 169 CLR 279 at 286. 

43                  Pursuant to O 81 r 5 of the Rules an applicant pursuing a claim under the HREOC Act in this Court is required to do so pursuant to a Form 167.  The prescribed Form sets out various questions which are designed to be answered by an applicant.  After various preliminaries, the Form provides that an applicant must complete information relevantly responding to these inquiries:

11        Describe the discrimination you are complaining of

            (The unlawful discrimination must:

(a)       be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Human Rights and Equal Opportunity Commission; or

(b)       arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.)

12        Under what Act is the discrimination you are complaining of unlawful?

In this regard four Acts are listed, the Age Discrimination Act 2004; the Disability Discrimination Act 1992; the Racial Discrimination Act 1975; and the Sex Discrimination Act 1984.

13        State all sections of the Act that are relevant to this claim.

14        What remedy are you asking Court for?

For remedies, there are three boxes requiring ticking, the first being ‘Apology from respondent’; the second being ‘Compensation’; and the third being ‘Other’.  In an attached schedule dealing with damages, the following appears in Dr Reading’s application:

SCHEDULE 3

DAMAGES AND COMPENSATION (EXCLUDING SICK LEAVE ENTITLEMENTS UNDER THE DEED)

44                  The answers to the questions set out above are contained in 56 pages of Dr Reading’s application.  The document is extremely comprehensive but is in more of a combined form of an unsworn affidavit and submissions rather than a pleading.  It also contains some very general remarks which do not articulate precisely a date or dates on which the alleged unlawful acts occurred and which members of WDP were involved.  The document contains what might be described as argument rather than simply a list of facts and particulars. 

45                  Making all the reasonable allowances for a litigant in person, the fact remains that any respondent attempting to deal with this application would suffer real prejudice in recognising the case he or she is to meet in terms of a concise statement of facts and particulars. 

46                  It was for that reason that on the last directions hearing that I directed that Dr Reading file a more succinct points of claim.  In making an order that Dr Reading file a points of claim, I also ordered that Dr Reading particularise:

1.                  each alleged unlawful act on which she relied;

2.                  the date or the approximate date of each alleged unlawful act;

3.                  under which law, and which provision of that law, the act is said to have been unlawful;

4.                  what facts are relied upon to establish the alleged unlawful act constitutes breach of that law.

47                  On 7 July 2008, Dr Reading filed her points of claim.  This document is also very lengthy.  It is some 45 pages.  It is, however, an improvement on the original claim in terms of clarifying the areas of her complaint. 

48                  In both its original submissions and in subsequent submissions developed after receipt of the points of claim, the first, fifth and tenth respondents have raised the concern that much of the material set out in each of those documents includes reference to allegations which are not the same or not the same in substance as the matters in the terminated complaint.  It is also said that they do not rise out of the same or substantially the same acts, omissions or practices the subject of the terminated complaint.

49                  Under the points of claim, on the other hand, there are not only references to sections of the legislation which are said to be relevant to Dr Reading’s complaint but also detailed submissions on those topics.  Dr Reading makes the point that she is not precluded by pleading rules from pleading matters of law.  Ordinarily pure assertions of law should not be pleaded – Middlesex County Council v Nathan (1937) 2 KB 272; Re Vandervell’s Trusts (No 2) [1974] 3 WLR 256.  The exception to this is when doing so clarifies the case already pleaded by reference to material facts:  Allstate Life Insurance Co v ANZ Banking Group Ltd [1994] FCA 636.  It is common to raise a point of law when there is a point of law which if decided in one way is going to be decisive of the litigation:  Everett v Ribbands (1952) 2 QB 198 at 206 but this is usually in a defence, not in a statement or points of claim. 

50                  The many objections of the first, fifth and tenth respondents to the very extensive content of the original complaint constituted in the Form 167, can be reduced to the assertions that Dr Reading has:

·                    irrelevantly pleaded evidence;

·                    unnecessarily pleaded law;

·                    been imprecise in identifying the particular facts on which reliance is based on the pleading in its current form whether it be under the original application or as revised in the points of claim;

·                    raised many matters which exceed the Court’s jurisdiction as they go beyond the entitlement provided for by s 46PO(3)(a) and (b) of the HREOC Act;

·                    the complaints raised are not the same or the same in substance as the unlawful discrimination that was the subject of the terminated complaint.  Nor does the unlawful discrimination alleged in the application arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 

51                  The first, fifth and tenth respondents complain that the most significant of the deficiencies in the points of claim is that despite the order made on 25 June 2008, the points of claim does not identify the dates or approximate dates of the alleged unlawful conduct.  Clearly this is important as partners come and go, that is, retire, join and/or reconstitute the partnership.  Dr Reading admits that she is unable to recall dates of circumstances which occurred perhaps three years ago.  But nevertheless the stipulation of dates within a reasonable period, is clearly required so as to enable the respondents to respond to the allegations. 

52                  Also omitted from the points of claim is sufficient identification of which of the partners of the Partnership participated in the allegedly unlawful conduct in any sense. 

53                  In my view, these deficiencies are fundamental and are much more significant than the complaint which is raised that the points of claim contains reference to decided cases, is more in the nature of submissions and contains lengthy citations of sections from the SDA. 

54                  The most serious category of deficiency is that the substance of the claims goes beyond the claims in the Commission – if not to the full extent claimed by the Partnership, then nevertheless, quite significantly.  The first, fifth and tenth respondents contend and I think correctly that the points of claim identifies the following specific complaints of alleged unlawful discrimination:

(a)        that Dr Reading was required to work longer hours in the normal working week than her male counterparts from at least 2003 to 2005 (par 8 of the points of claim);

(b)        that Dr Reading received less base FTE remuneration than some of the more junior male partners and non-partners (par 38 of the points of claim);

(c)        that Dr Reading was ordered to work 10 to 11 hours per day approximately once a week for a period of six months during 2005 to 2006 to perform junior staff and scientific cut-up in the laboratory (par 72 of the points of claim);

(d)        that Dr Reading was ordered regularly to work a 9 hour day from Monday to Friday in 2005 and 2006 no matter what roster she was on (par 75 of the points of claim);

(e)        that Dr Thomas Grieve refused Dr Reading’s request for part-time work in January 2005 and on numerous occasions thereafter (par 97 of the points of claim);

(f)         that Dr Reading was constructively dismissed on the ground of family responsibilities (par 166 of the points of claim);

(g)        that priority for leave in the school holidays was given to male pathologists (par 183 of the points of claim);

(h)        that Dr Reading experiences a sex-based hostile work environment (par 235 of the points of claim);

(i)         that Dr Reading was denied the benefit of receiving inordinate bonuses for Saturday morning work that the male pathologists could access (par 203 of the points of claim);

(k)        that Dr Reading was given no help in shifting offices upstairs and was ordered to shift herself without aide by Dr Caruso at short notice (par 363 of the points of claim);

(l)         that Dr Reading was excluded from social activities in the workplace during 2004, 2005 and 2006 (par 388 of the points of claim);

(m)       that Dr Reading was forbidden to attend morning tea breaks by Dr Grieve and that all the other pathologists attended for 15-20 minutes in the morning intermittently from 10.30-11.15 am (par 407 of the points of claim);

(n)        Dr Reading was offended by a sexually explicit conversation in the workplace tearoom by the male pathologists (par 419 of the points of claim); and

(o)        that Dr Reading has been subjected to victimisation (par 444 of the points of claim).

55                  The first, fifth and tenth respondents contend that the following matters identified in the points of claim are not the same or the same in substance as the terminated complaint:

1.                  that Dr Reading was constructively dismissed on the ground of family responsibilities (par 166 in the points of claim);

2.                  that priority for leave in the school holidays was given to male pathologists (par 183 of the points of claim);

3.                  that Dr Reading was denied the benefit of receiving inordinate bonuses for Saturday morning work that the male pathologists could access (par 203 of the points of claim);

4.                  that Dr Reading was given no help in shifting offices upstairs and ordered by Dr Caruso to shift herself without assistance and at short notice (par 363 of the points of claim);

5.                  that Dr Reading was offended by a sexually explicit conversation in the workplace tearoom by the male pathologists (par 419 of the points of claim);

6.                  that Dr Reading has been subjected to victimisation (par 444 of the points of claim);

56                  The Partnership accordingly contends the following paragraphs of the Points of Claim, and accompanying particulars identified below should be struck out on the basis that they contravene s 46PO(3) of the HREOC Act:

(a)        paragraphs 166, 168-172, 179-181;

(b)       paragraphs 183, 187-201;

(c)        paragraphs 203, 207-221, 224-228, 230, 231, 233;

(d)       paragraphs 363, 366-374, 375, 376 380-386;

(e)        paragraphs 419, 425-442 ;

(f)        paragraphs 444-446, 450-459

Whether the points of claim and particulars contravene s 46PO(3) of the HREOC Act

57                  In relation to the first complaint, namely, that Dr Reading was constructively dismissed, Dr Reading says that she regarded the relationship between her head of department and herself as similar to an employer/employee relationship and in the terminated complaint reference was made to the fact that her allegation was that she was forced to work fulltime or to resign.  It was in relation to that complaint that she contended that she had been ‘constructively dismissed’.  As to the claim of constructive dismissal, while it is clear that Dr Reading was not dismissed by an employer, that is, she was at all times a partner in the Partnership, the broad nature of the claim (that she would be required to leave the Partnership) was, in my view, raised with the Commission

58                  As to the second and third points concerning priority for leave in the school holidays and Saturday morning bonuses, she contends that each was simply an example of the ‘direct’ discrimination of which she complained in terms of the actual priority being given to the male pathologists.  She contends that this is covered by item 4 in the original notice of dispute dealing with the allocation of annual leave during school holidays and how preference was given to Dr Trown.

59                  As to the fourth point concerning absence of help in shifting offices upstairs, she says again that being specific this complaint was ‘actually included early on in the notice of dispute that was submitted to the Commission and they considered that’. 

60                  Dr Reading makes the same submission concerning the fifth matter identified by the first, fifth and tenth respondents concerning sexually explicit conversations.  Dr Reading says that this complaint was identified in par 8 on p 16 of the notice of dispute.  This complaint in my assessment is not one that was at the heart of the many matters raised before the Commission.  The essence of those allegations was in relation to financial equality and work equality issues arising by reason of breaches of the SDA.  This particular complaint was not raised by the Commission nor pursued at all after a brief initial passing reference by Dr Reading.  It will be struck out. 

61                  As to par 6, concerning victimisation, Dr Reading says that she has included victimisation because it was a breach of the HREOC Act which caused her great stress and financial loss in terms of the fact that she was refused sick leave entitlements until she withdrew the application from either the Commission or these proceedings and she was threatened with expulsion from WDP.  In my view, the victimisation claim should not be maintained and will be struck out.  I do not believe such a claim can be discerned within the topics raised with the Commission. 

62                  The remaining claims, that is the 1^st to 4^th category of claims, in my view can stand, at least, in substance.  The Commission itself did not quote all of the claims which were made by Dr Reading to it but rather sought input from WDP in relation to a requirement to work longer hours than male colleagues, being paid less than male colleagues, being denied the opportunity to work a four day week and being requested to perform junior staff duties.  There is no evidence that Dr Reading complained to the Commission that it had failed to adequately identify the essence of her complaints.  It would follow from this that in my view the following paragraphs should be struck out, pars 419, 425-442 / 444-446 / 450-459. 

Conclusion

63                  I will make the following orders:

1.                  The application against the third and fourth respondents is dismissed.

2.                  There will be leave to file and serve within 6 weeks of this order a fresh amended points of claim.

3.                  In relation to any complaint of breach of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), specific dates and specific persons are to be either identified or not pleaded. 

4.                  The topics that have been struck out as going beyond the complaints raised in the Commission are not to be pleaded again. 

5.                  Any submissions from any party in relation to costs is not to exceed two pages in length and is to be filed and served within 10 days. 

Associate:

Dated:         9 September 2008