FEDERAL COURT OF AUSTRALIA

Shammas v Canberra Institute of Technology [2014] FCA 71

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a), (c) and (d) of the Federal Court Rules 2011, the whole of this proceeding be summarily dismissed.

2.    The applicant pay the respondent’s costs of and incidental to this proceeding (including the respondent’s costs of and incidental to the Interlocutory Application filed by it on 31 October 2013).

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

REASONS FOR JUDGMENT

1    In the period from February 2010 to 31 March 2011, the applicant was a student at the respondent Institute’s Southside campus in Canberra. She studied Certificate IV in Business Administration in the full-time class and two subjects of MYOB in the learning centre.

2    By formal complaint dated 6 February 2013 lodged with the Australian Human Rights Commission (AHRC) (the original complaint), the applicant claimed:

(a)    To have been sexually harassed;

(b)    To have been discriminated against because of her sex, because of her race, because of a disability which she claims to have and because of her age;

(c)    To have had her human rights (said to be her right to privacy) breached by Australian Security Intelligence Organisation (ASIO) and staff of the Institute at its Southside campus; and

(d)    To have been racially vilified.

3    The original complaint was lodged against ASIO, against unidentified employees of ASIO, against the Institute and against six (6) named persons who were either staff employed by the Institute or students at the Institute’s Southside campus at the time when the applicant was a student there in 2010–2011.

4    The original complaint comprised nineteen (19) pages of typescript and 138 pages of attachments.

5    By email sent at 4.53 pm on 15 March 2013, the applicant informed the AHRC that she wanted to proceed with only one complaint, namely, her complaint against the Institute itself for encouraging or causing two of its students to sexually harass her. She said that her complaint of sexual harassment related to one incident only. In effect, by that email, she withdrew entirely her complaint against ASIO and its officers. She also withdrew her complaints against the Institute and others of unlawful discrimination against her on the grounds of sex, race, disability and age as well as her claim that her right to privacy had been breached and her claim that she had been racially vilified. She also withdrew her complaint insofar as it related to individual staff and students of the Institute.

6    By a further email sent at 12.38 am on 26 April 2013, the applicant formally confirmed that, by her email of 15 March 2013, she had intended to confine her complaint to her allegation that she had been sexually harassed by the Institute in the sense that it had caused, encouraged or motivated two of its students to do an unlawful act, namely, to sexually harass her. In her email, she said that the two students who she claimed had sexually harassed her had done so as a consequence of the “direct encouragement and motivation” on the part of staff of the Institute.

7    I shall refer to the applicant’s complaint as modified by her emails of 15 March 2013 and 26 April 2013 as “the applicant’s amended complaint”.

8    By Notice of Termination dated 10 May 2013, a delegate of the President of the AHRC terminated the applicant’s amended complaint pursuant to s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that the complaint was lodged more than twelve (12) months after the alleged unlawful discrimination took place. In her Statement of Reasons which accompanied the Notice of Termination, the delegate said (amongst other things):

In relation to the apparent merit of your complaint [of sexual harassment], I am of the view that there is insufficient information before the Commission at this time to support your claim that CIT instructed [the two students in question] to sexually harass you in the manner you alleged.

9    The applicant commenced this proceeding on 5 July 2013 when she filed an Originating Application under s 46PO of the AHRC Act. In her Originating Application, the applicant claims to be a victim of unlawful discrimination at the hands of the Institute in breach of s 105 of the Sex Discrimination Act 1984 (Cth) (SD Act). She claims compensation. In her Originating Application, her claim is expressed in the following terms:

The Applicant claims that:

1.    I have suffered sexual harassment by two students in my class when I did a course of Business Administration in Canberra Institute of Technology “CIT” Southside, staff in CIT causing, instructing, inducing, aiding and permitting the doing of that unlawful act under the Sex Discrimination Act 1984 “SDA” and Human Rights Act.

10    Pursuant to a direction of the Court, on 20 September 2013, the applicant filed a Statement of Claim.

11    On 31 October 2013, the Institute filed an Interlocutory Application. By that Interlocutory Application, the Institute seeks an order summarily dismissing the whole of the present proceeding on the grounds that:

(a)    The proceeding is an abuse of process because it has no reasonable prospect of success; and

(b)    The Statement of Claim does not disclose any reasonable cause of action against the Institute.

12    The Institute did not rely upon s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) as a basis for its summary dismissal application.

13    The Institute did, however, expressly rely upon r 26.01(a) of the Federal Court Rules 2011 (FCR). The substance of the relevant test under s 31A (“… if the Court is satisfied that [the applicant] has no reasonable prospect of successfully prosecuting the proceeding …”) is the same as the relevant test embodied in r 26.01(a) FCR (“… because the applicant has no reasonable prospect of successfully prosecuting the proceeding …”). The Institute also relied upon r 26.01(c) and r 26.01(d) FCR.

14    I am comfortably satisfied that the applicant well understood that the Institute was seeking to have her whole case summarily dismissed. She conceded as much at the hearing before me. I propose to proceed under both s 31A of the Federal Court Act and under r 26.01 FCR.

15    These Reasons for Judgment determine the Institute’s claim for an order that the whole of the proceeding be summarily dismissed.

The Applicant’s Case against the Institute

16    The applicant endeavoured to articulate her case against the Institute in her Statement of Claim.

17    The applicant’s Statement of Claim does not conform to the requirements of the FCR or the practice of the Court and contains allegations which are, at times, difficult to follow. However, doing the best I can, I think that her case, as pleaded in her Statement of Claim, may be summarised as follows:

(a)    From the time of her arrival in Australia in mid-November 2009, the applicant has been under continuous surveillance by ASIO. In particular, she was under surveillance by ASIO when she attended the Southside campus of the Institute for a little over 12 months between February 2010 and March 2011.

(b)    In August 2010 (apparently on one occasion only during a class being held at the Institute), two students, whom I shall call AK and AM, “looked at the applicant up and down, glaring and leering in an obvious way assessing her body” when she left her place in class in order to ask the class teacher a question. The behaviour of AK and AM was very offensive to the applicant, especially as she was a mature student in a class of persons who were generally younger than her and a recent arrival in Australia. AK and AM were aged in their 20s in August 2010 while the applicant was 45 years of age at that time.

(c)    The incident described in subpar (b) above occurred as a consequence of ASIO breaching the applicant’s privacy in her family home by listening to the conversations which she had there with members of her family and by disclosing to staff of the Institute the subject matter of one particular private discussion which had taken place between the applicant and a member of her family at her home. The information which ASIO disclosed to staff of the Institute was the fact the applicant had told her family in the privacy of her home that she had gained weight since her arrival in Australia.

(d)    The Institute instructed AK and AM to behave as they did. That is, the Institute instructed AK and AM to look at the applicant in the fashion alleged by her.

(e)    On 19 October 2010, the applicant complained to staff of the Institute about this incident of alleged sexual harassment and also complained at the same time about several other matters.

(f)    After the applicant complained to the Institute, the Institute failed to investigate her complaints at all or failed to investigate her complaints properly. The Institute’s failure to investigate her complaints at all or properly demonstrated that it had instructed AK and AM to behave as they did.

18    The applicant’s Statement of Claim contains a number of additional allegations which are not relevant to the claim of sexual harassment which she makes in the present proceeding. It is not necessary to traverse those allegations.

19    In her Originating Application, the applicant claims compensation. In her Statement of Claim, she also seeks aggravated damages, punitive or exemplary damages and special damages.

20    The applicant swore an affidavit on 13 November 2013 in support of her opposition to the summary dismissal order sought by the Institute. That affidavit contains material which, for the most part, is attached to her Originating Application. That material does not amplify or alter the terms of the allegation of sexual harassment to which I have referred at [17(b)] above.

21    In this proceeding, the applicant relies upon ss 28A, 28F, 105 and (possibly) 106 of the SD Act as the statutory basis of her claim.

22    Section 28A of the SD Act provides:

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.

23    Section 28F(2)(a) provides that it is unlawful for a person who is an adult student at an educational institution to sexually harass a person who is an adult student at that institution.

24    Both AK and AM were adult students at the Institute in August 2010, as was the applicant. The Institute was at that time, and remains, an educational institution within the meaning of that expression in s 28F(2)(a) of the SD Act (see the definition in s 4(1) of the SD Act).

25    Section 105 of the SD Act provides:

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.

26    Section 28F(2)(a) is in Div 3 of Pt II. Therefore, s 105 cannot apply at all in the circumstances of this case.

27    The conduct upon which the applicant relies as constituting sexual harassment of her is conduct undertaken by AK and AM. AK and AM were students at the Institute at the relevant time. The applicant pleads and argues that the Institute instructed AK and AM to behave as they are alleged to have done towards the applicant. In that way, the applicant picks up one of the terms mentioned in s 105 and seeks to rely upon s 105 as the basis upon which the Institute is to be made liable for the conduct allegedly undertaken by AK and AM. The applicant relies upon s 105 only in her Originating Application although she refers to both s 105 and s 106 in her Statement of Claim. Because s 105 cannot be engaged at all in the present case, for the reason that it only applies to unlawful acts which are made unlawful under Div 1 or Div 2 of Pt II of the SD Act and does not apply to acts which are made unlawful under other parts of the SD Act (such as Div 3 of Pt II where s 28F is to be found), the applicant’s case cannot succeed. For this reason alone, I would dismiss the current proceeding pursuant to s 31A of the Federal Court Act and under r 26.01 FCR.

28    Against the possibility that it may be thought that the applicant has, in fact, invoked s 106 of the SD Act as a basis for rendering the Institute liable for the conduct of AK and AM, I now turn to address the question of whether s 106 can be engaged in the present case.

29    Section 106 provides for vicarious liability to be imposed on a person in circumstances where the perpetrator of the relevant unlawful act is an employee or agent of that person and the unlawful act is carried out in connection with the employment of the employee or with the duties of the agent as an agent. Neither AK nor AM is alleged by the applicant to have been an employee or agent of the Institute when they committed the acts which are said to constitute sexual harassment of the applicant. There is no evidence before me that establishes or even suggests either of those students was an employee or an agent of the Institute at the relevant time.

30    For the reasons which I have explained at [29] above, s 106 is not and cannot be relied upon by the applicant in the present case.

31    The Institute did not address the fatal flaws in the applicant’s case caused by her incapacity to rely upon either s 105 or s 106 of the SD Act. Rather, it chose to make a number of other submissions designed to demonstrate that the applicant’s case was without merit in any event and should be dismissed out of hand.

32    In deference to the arguments which the parties advanced to the Court and in case my views concerning the engagement of s 105 and s 106 of the SD Act are incorrect, I will proceed to deal with the parties’ submissions as put.

The Terms of the Applicant’s Amended Complaint to AHRC

33    As I have already noted, the applicant’s original complaint to AHRC is a voluminous document. However, the precise terms in which she made her allegation of sexual harassment in that original complaint were:

Sexual Harassment

1- For sexual harassment incident the students involved; [AK] and [AM], fellow students in the full time class in Cert IV Business Administration.

They did the act of sexual harassment by looking at me up and down assessing my body. Those students didn’t dare to do that act by themselves because CIT policy is very strict in relation to bullying and harassment and it is compatible with the Human Rights Act and anti discrimination Act.

They did that act, by encouragement and motivation of CIT staff as consequence of disclosing private information by ASIO employees and CIT staff from the privacy of my home to those students, as I was complaining of gaining weight since my arrival to Australia.

What is this person’s relationship to you? They were classmates in the full time class when I did the course “Business Administration Cert IV” in CIT Southside, I didn’t have any relationship with them when they did that act of sexual harassment.

What has happened?

Two students looked at me up and down glaring and leering in an obvious way assessing my body when I left my place walking in class to ask [the] computer class teacher a question.

That act and behavior by those two students was very offensive especially that I was mature student in that class and new arrival to Australia; those students were younger than me beside that I didn't have any relationship with them.

Although those two students did the act their liability is limited because they couldn’t dare to do that act of sexual harassment if they didn’t get instruction, encouraged and motivated to do it by the authority “staff” in CIT Southside Campus.

And they wouldn’t do that act if they were not ascertain that they were in the safe side and guaranteed that there will be no punishment or disciplinary actions against them if any complaint affected in relation to that incident.

And that was exactly what happened when I effected a complaint against those two students on 19 October 2010 to the authority the education manager in CIT, as CIT didn’t investigate the matter by creating lots of unreasonable pretexts to avoid investigating it because they can’t investigate something they were part of it by encouraging and motivating the students to do it as a consequence of their cooperation with employees in ASIO in relation to disclosing my privacy, bullying and harassing me through some students in my class.

That act happened as a consequence of invading my privacy in my family house by ASIO employees and disclosing private conversation in relation to myself gaining lots of weight since my arrival to Australia.

34    The text which I have extracted at [33] above from the applicant’s original complaint to the AHRC is found at pp 3–4 of the typescript section of her original complaint.

Some Matters of History

35    In January 2011, the applicant lodged three (3) complaints of discrimination under the Discrimination Act 1991 (ACT) with the ACT Human Rights Commission. By those complaints, the applicant alleged that the Institute and certain members of its staff had discriminated against her on the grounds of her race and age. The gist of her complaints was that the Institute had failed to investigate or to investigate properly a number of complaints which she had made to the Institute. Included within the matters which the applicant alleged had not been properly investigated was the allegation of sexual harassment which she later made in her original complaint to the AHRC and which she repeats in this proceeding.

36    On 6 April 2011, the ACT Human Rights Commission closed the applicant’s complaints because they lacked substance.

37    The applicant elected to refer her complaints to the ACT Civil and Administrative Tribunal (ACAT) under s 53(a) of the Human Rights Commission Act 2005 (ACT). One assertion which she made in her proceeding before ACAT was:

On 19 August 2010, I remember that two other students, [AK] and [AM], had looked at me up and down assessing my body in one of computing classes, which I considered very offensive & humiliating.

38    Before ACAT, the applicant contended that the Institute had failed to investigate properly or at all her assertion that she had been sexually harassed in the manner described at [37] above and thus had discriminated against her as alleged.

39    On 15, 16 and 17 February 2012, Ms J Lennard, a senior member of ACAT, heard evidence in relation to the applicant’s complaints about the conduct of certain staff employed by the Institute.

40    On 5 March 2012, Ms Lennard heard an application by the applicant to re-open the ACAT hearing in order to hear the applicant’s complaints that ASIO was interested in her and had been “bugging” her telephone. Ms Lennard refused leave to re-open for that purpose.

41    On 8 March 2012, Ms Lennard announced her decision. She concluded that none of the applicant’s complaints had been proved and that none of the staff at the Institute had discriminated against the applicant on the grounds of her age or her race.

42    None of the applicant, AK or AM gave evidence at the hearing before Ms Lennard. There was, therefore, no direct evidence of the incident which the applicant alleged had occurred in class in August 2010.

43    On 19 April 2012, the applicant, being dissatisfied with Ms Lennard’s decision, appealed to ACAT’s Appeal Division.

44    On 23 July 2012, the applicant made application to ACAT to have her appeal removed from ACAT’s Appeal Division into the Supreme Court of the Australian Capital Territory. That application was refused on 27 July 2012.

45    On 2 August and 6 August 2012, Mr W G Stefaniak, the President of ACAT, heard submissions from both parties directed to the applicant’s appeal, based upon the evidence which had been led before Ms Lennard. Some limited new evidence was also led on appeal.

46    On 6 August 2012, Mr Stefaniak gave his decision dismissing the applicant’s appeal. On that occasion, Mr Stefaniak gave reasonably detailed reasons in support of his decision. He supplemented those reasons with a written note published on 24 August 2012. That note was in the following terms:

I note that the appellant’s request for a statement of reasons for my decision AA 10 of 2012 is out of time and I also note that the detailed reasons are contained in a copy of the transcript attached to this document which forms the basis for my decision. However, for the further assistance of all parties I will briefly summarise those reasons as follows:

a)    I could find no evidence whatsoever which indicated to me that the Canberra Institute of Technology (the CIT) and its staff, agents, employees and servants had in any way discriminated against the appellant. As indicated in greater detail in the transcript attached, I formed the view that the staff of the CIT were trying their best to help her.

b)    In considering the detailed [record] of the proceedings before Senior Member Lennard, I came to the conclusion that Ms Lennard gave Ms Shammas every possible latitude and assistance and her consideration of the evidence was thorough and sound. I found that she came to the only available [sic] conclusion available to her on all the evidence before her. I endorse her judgment and her reasons for decision.

c)    The additional limited material put before me by the appellant on appeal did not advance her case at all.

d)    Accordingly I confirmed the decision of Senior Member Lennard and dismissed the appeal. Please see the transcript attached for further detail.

47    Subsequently, the applicant sought leave to appeal to the Supreme Court of the ACT from Mr Stefaniak’s decision. Leave to appeal was refused by Penfold J on 20 December 2012 (Shammas v Canberra Institute of Technology [2012] ACTSC 197). Leave to appeal to the ACT Court of Appeal from the decision of Penfold J was refused by Nield AJ on 2 December 2013 (Shammas v Canberra Institute of Technology [2013] ACTCA 50).

48    The applicant’s original complaint was lodged with the AHRC after the decision of Penfold J given on 20 December 2012 but before the hearing before Nield AJ, which took place in May 2013. The present proceeding was commenced after the hearing before Nield AJ.

49    In ACAT and in the subsequent related litigation in the Supreme Court of the ACT, it was the applicant’s case that she had been discriminated against by the Institute because the Institute had failed to investigate properly or at all the complaints which she had made to its staff in October 2010. Although one of those complaints was the complaint that the two students, AK and AM, had inappropriately looked at the applicant, it was no part of the function of ACAT when dealing with her complaints to that body to determine whether or not the incident had, in fact, occurred as the applicant alleged nor was it any part of that body’s function to determine whether, if the incident had occurred, the conduct of AK and AM amounted to sexual harassment. This was, no doubt, the reason that primary evidence directed to proving what happened on the occasion when the alleged sexual harassment occurred was not led before ACAT. The applicant’s case before ACAT was that the Institute’s failure to respond adequately to her complaints constituted unlawful discrimination on account of her race and age.

Consideration

50    In Singh v Super City Home Loans Pty Ltd [2011] FCA 646, at [129], I summarised the principles to be applied when the Court comes to consider exercising its power to summarily dismiss a proceeding pursuant to s 31A of the Federal Court Act in light of the High Court’s decision in Spencer v The Commonwealth (2010) 241 CLR 118. It is not necessary to extract that summary in full here. It is sufficient to note the following:

(a)    The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to a rule of Court in the terms of O 11 r 16 of the Federal Court Rules 1979.

(b)    The power to terminate proceedings summarily should be exercised with caution.

(c)    There must be a high degree of certainty that the claimant cannot succeed if the proceeding is allowed to go to trial in the ordinary way.

(d)    There must be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success”. The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail. This test constitutes a radical departure from previous regimes which required that the proceeding must be shown to have no prospects of success.

51    As I observed at [13] above, I am of the view that the test for summary dismissal laid down by r 26.01(a) FCR is the same test as the test for summary dismissal specified in s 31A of the Federal Court Act.

52    Rule 26.01(c) FCR provides that a respondent may apply to the Court for an order that a claim be summarily dismissed if no reasonable cause of action is disclosed in the applicant’s pleadings. Under this rule, an applicant for an order summarily dismissing a proceeding is required to demonstrate that there is no possibility that the claimant’s claim can succeed.

53    Rule 26.01(d) FCR provides that a claim may be summarily dismissed if the proceeding is an abuse of the process of the Court. Abuse of process may be demonstrated in a number of ways including by proving that the claim is bound to fail or by proving that it has been fully but unsuccessfully litigated by the claimant elsewhere.

54    The applicant’s case in this proceeding is a narrow one. She alleges that, in August 2010, two students of the Institute, AK and AM, sexually harassed her by looking at her in the manner which I have described at [17(b)] above. She says that that conduct constituted sexual harassment within the meaning of s 28A of the SD Act and was unlawful by reason of the operation of s 28F(2)(a) of the same Act. In addition, she alleges that the Institute is liable for the conduct of AK and AM because it instructed them to look at her in the way I have described.

55    In its submissions before me, the Institute argued that the applicant has no reasonable prospect of successfully prosecuting her case. It also submitted that, as pleaded, the applicant’s case was bound to fail. Finally, it submitted that the applicant’s case constituted an abuse of process because the very same case has been unsuccessfully litigated in ACAT and in the Supreme Court of the ACT.

56    In support of these broad propositions, Counsel for the Institute made the following specific submissions:

(a)    The applicant has not pleaded any facts or matters upon which the allegation that the Institute instructed AK and AM to behave as they did is based. It is not a sufficient averment merely to repeat the words of s 105 of the SD Act without more. The giving of an “instruction” necessarily involves some form of communication from the Institute to AK and AM. There is no fact or matter pleaded which explains the alleged link between the Institute and the two students. This omission is more than a mere pleading point. The applicant is unable to plead such facts and matters because she has no basis for alleging that the Institute gave any such instruction.

(b)    In any event, the conduct alleged against AK and AM is not capable of constituting sexual harassment within the meaning of s 28A of the SD Act and is thus not capable of constituting unlawful conduct within the meaning of s 28F(2)(a) of that Act.

(c)    The unlawful discrimination alleged in the applicant’s Originating Application and explained in her Statement of Claim is not the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint nor does it arise out of the same or substantially the same act, omissions or practices that were the subject of the terminated complaint. For these reasons, the Court has no jurisdiction in the matter because the requirements that s 46PO(3) of the AHRC Act have not been satisfied. The point here is that, according to the Institute, the word “leering” formed no part of the description of the way in which AK and AM looked at the applicant on the day in question which the applicant gave in the complaint which she made to the AHRC and has been added to the description of what occurred which she now gives in her Statement of Claim in order to give a sexual connotation to the incident about which the applicant complains, a connotation which was not previously present.

(d)    This proceeding is an abuse of process for two reasons: First, it has no prospect of succeeding. Second, by this proceeding, the applicant is seeking to re-litigate a matter that has already been decided against her or is endeavouring to bring multiple proceedings in respect of a matter which should have been litigated in one proceeding, viz in the proceeding brought by the applicant in ACAT in 2011.

57    The applicant answered these submissions by making the following submissions:

(a)    Her case at ACAT and in the Supreme Court of the ACT involved allegations of unlawful discrimination against the Institute based upon its failure to investigate properly or at all the complaints which she had made to it in October 2010. Although the incident which is at the centre of the present proceeding was the subject of the complaints which she made to the Institute at that time, the truth or falsity of the applicant’s claim that she was sexually harassed as alleged was not in issue in the ACAT proceedings nor was it an issue in the proceedings in the Supreme Court of the ACT. No finding was made by Senior Member Lennard, President Stefaniak or the Supreme Court as to whether or not the incident occurred as the applicant alleges nor was the making of a finding in respect of that matter necessary in those proceedings.

(b)    The events about which the applicant complained in the ACAT proceeding and complains in the present proceeding are the result of an unlawful combination or conspiracy between officers of ASIO and staff of the Institute.

58    A critical integer of the applicant’s case as pleaded is the proposition that the Institute actually instructed AK and AM to behave as they allegedly did towards the applicant. The applicant should not have pleaded that allegation unless she had a basis for so doing. If she had such a basis, she was obliged to plead all facts and matters upon which she intended to rely at the trial as constituting the alleged instruction. The applicant has not pleaded any such facts and matters but has merely regurgitated the language of s 105 of the SD Act. When I asked the applicant during argument at the hearing before me to tell me the basis upon which she intended to assert that the Institute had instructed AK and AM to behave as they did, she was unable to do so. It is quite clear to me that not only has the applicant not pleaded facts and matters to support such a contention but it is also clear that she is simply unable to do so because she has no basis for making that allegation. Even if, contrary to the conclusions which I have reached as to the applicability of s 105 and s 106 of the SD Act in the circumstances of the present case (as to which see [25]–[30] above), one or other of s 105 or s 106 could conceivably be engaged in the present case, the incapacity of the applicant to plead facts and matters to support her contention that the Institute instructed AK and AM to behave as they did is fatal to her case.

59    In addition, I do not think that the conduct of AK and AM as described by the applicant is capable of meeting the definition of sexual harassment contained in s 28A of the SD Act. There was no request for sexual favours and no sexual advance, let alone an unwelcome sexual advance. Nor, as described, is the conduct capable of constituting other unwelcome conduct of a sexual nature within the meaning of s 28A(1)(b) of the SD Act. As described by the applicant, the conduct was a one-off incident; did not involve any verbal exchange between either AK and AM, on the one hand, and the applicant, on the other hand; did not involve any physical contact; and, at its highest, involved no more than very limited visual scrutiny which was perceived by the applicant as inappropriate. In addition, it took place in a lecture room or theatre at the Institute in the presence of other students and the lecturer. These features of the incident take it well outside that which is contemplated by the definition of sexual harassment set out in s 28A of the SD Act.

60    The circumstance that the conduct complained of does not satisfy the definition of sexual harassment provides another reason for dismissing the applicant’s case.

61    The Institute also submitted that there was a disconformity between the terms of the applicant’s complaint to the AHRC and the terms of her complaint now embodied in her Originating Application and Statement of Claim in the sense that the word “leering” has been introduced into the applicant’s description in the current proceeding of what occurred when that word was not contained in the description of the incident given by the applicant to the AHRC in her complaint to that body.

62    This submission cannot be sustained.

63    As is perfectly plain from the extract from the applicant’s complaint to the AHRC which I have set out at [33] above, the word “leering” did appear in the original complaint and was not later removed when that complaint was amended. In any event, the unlawful discrimination alleged in the present proceeding arises out of the same or substantially the same acts that were the subject of the applicant’s amended complaint.

64    The Institute’s submissions to the effect that the applicant’s case was an abuse of the process of the Court because the subject matter thereof had been fully and unsuccessfully litigated elsewhere should also be rejected. The ACAT proceeding which the applicant brought was based upon alleged discrimination constituted by the Institute’s failure to address properly or at all the complaints which she had made to staff of the Institute in October 2010. She did not ask ACAT to determine whether she had been sexually harassed by AK and AM as alleged by her nor did ACAT or the Supreme Court of the ACT find or purport to find that she had been sexually harassed by AK and AM as alleged by her. Ms Lennard did not go so far as to make such a finding at par 84 of her Reasons. For similar reasons, I am of the view that the current proceeding is not an abuse of the process of the Court for the second reason advanced by the Institute, namely that it is a proceeding which should have been litigated in the proceeding brought by the applicant in ACAT in 2011.

Conclusions

65    For all of the above reasons, I consider that the current proceeding should be summarily dismissed with costs.

66    There will be orders accordingly.

Associate:

Dated:    13 February 2014