FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited (No 2) [2015] FCA 343

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Ms Picos on 19 November 2014 is dismissed with costs.

2.    The proceedings are dismissed with costs.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    By proceedings instituted on 25 July 2014, Ms Picos sought damages and interim relief against Servcorp Limited (Servcorp) under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for alleged sexual harassment and unlawful discrimination. She alleged that she had been the victim of sexual harassment at a serviced office leased by her in Barton in the Australian Capital Territory (the Barton Premises) in contravention of s 28G of the Sex Discrimination Act 1984 (Cth) (the SD Act).

2    On 26 August 2014, Gleeson J, before whom the matter had been listed as duty judge, delivered judgment in Picos v Servcorp Limited [2014] FCA 922 (Servcorp (No 1)). Her Honour dismissed Ms Picos’ claim for substantive relief in the sum of $200 million on the ground that the Court lacked jurisdiction to entertain the claim where no complaint to the Australian Human Rights Commission (the Commission) regarding the alleged conduct had been terminated (s 46PO, AHRC Act): Servcorp (No 1) at [25]. Her Honour also dismissed the application for an “interim” injunction requiring the respondent to pay the applicant $500,000.00 on the ground that the relief could not satisfy the requirements of s 46PP of the AHRC Act for the grant of an interim injunction to maintain the status quo or the rights of the complainant. Rather, her Honour held that it was a claim for damages which is appropriate relief, if at all, only after a final hearing (Servcorp (No 1) at [42]).

3    Ms Picos also sought the grant of an interim injunction pursuant to s 46PP of the AHRC Act requiring Servcorp to give her immediate access to the Barton Premises, which Ms Picos alleged was leased from Servcorp in 2014 (the interim injunction). Servcorp contended that Ms Picos had instituted the proceedings against the incorrect party, and that the service agreement governing the lease of the Barton Premises was in fact between Ms Picos and Enideb Pty Limited (Enideb), trading as Servcorp. While Gleeson J accepted that contention, her Honour was not satisfied on the evidence then available that Servcorp was unable to procure access to the Barton premises for Ms Picos, if such relief was appropriate, given the relationship between the two companies (at [36] and [40]-[41]). Her Honour also had regard to the fact that Ms Picos’ inability to appear at the hearing before her Honour was not of her own choosing (at [41]).

4    By an application filed on 21 January 2015, Servcorp seeks summary dismissal of the balance of the proceedings, being the application for the interim injunction, on the ground that the Court lacks jurisdiction to entertain the application under s 46PP of the AHRC Act upon the termination of Ms Picos’ complaint to the Commission on 13 November 2014. Ms Picos, however, submits that the Court has unlimited jurisdiction under the AHRC Act to make any orders as it sees fit and that Servcorp has submitted to the jurisdiction of the Court. While no formal application has been filed, Ms Picos also submits that judgment should be awarded against Servcorp under r 1.32 of the Federal Court Rules 2011 (Cth) (FCR) on the ground that Servcorp is in default under FCR rule 5.22(d). Rule 1.32 provides that the Court may make such order as it considers appropriate in the interests of justice.

5    Finally, by an interlocutory application dated 19 November 2014, Ms Picos seeks an order that Gleeson J remove herself for bias, a declaration that an affidavit filed by Servcorp is false or false in material particulars, and for this proceeding to be joined to proceedings NSD1179/2014 and heard pursuant to s 46PO(6) and/or general law. That application is supported by an affidavit sworn on 2 January 2015. The proceeding NSD1179/2014 was instituted on 17 November 2014 against Servcorp and several other respondents after termination of Ms Picos’ complaint to the Commission. In that proceeding, Ms Picos seeks damages by way of compensation for unlawful discrimination in the sum of $2.9 billion and exemplary damages of $100 million. At least as against Servcorp, the proceeding appears to be a claim for an order under s 46PO(4)(d) of the AHRC Act.

6    For the reasons set out below, the interlocutory application filed by Ms Picos must be dismissed, and the proceedings dismissed for want of jurisdiction.

2.    CONSIDERATION

2.1    Has the applicant had an opportunity to be heard?

7    In a second set of submissions filed by Ms Picos on 17 March 2015, Ms Picos submits that she “…has not been heard or given a proper opportunity to be heard in full”. While the submission is not further developed, it would seem that Ms Picos is referring to the fact that the application for summary dismissal was heard in her absence on 5 February 2015. That occurred in the following circumstances.

(a)    Six matters initiated by Ms Picos were listed before me on 5 February 2015, including one for mention, one for directions and four for hearing of interlocutory applications.

(b)    At the conclusion of the directions hearing in one of Ms Picos’ other matters, Ms Picos decided that she would not remain, and packed up her documents and left the courtroom. Before she took that course, I urged her to remain and avail herself of the opportunity to appear and respond to the interlocutory applications listed before me. She declined to do so. After Ms Picos departed, I adjourned the list for a short time in order to give Ms Picos the opportunity to reconsider her position and return to the courtroom.

(c)    Following a 10 minute adjournment, I resumed the Court and the other Servcorp proceedings NSD1179/2014 were called on. I asked the court officer to call the matters outside the courtroom, which she did. When the current proceedings were called on, I also asked the court officer to call the matter outside the Court three times, which she did. Upon there being no appearance by Ms Picos, I decided to proceed with the hearing of the respondent’s interlocutory application.

8    In deciding to proceed to hear the application in the applicant’s absence, I took into account that Ms Picos had been aware that the application for summary dismissal of her application would be listed on 5 February 2015 since the directions hearing held on 12 December 2014. She was also aware of the issues, having among other things been served with the respondent’s submissions in advance of the hearing, and had filed her evidence and submissions. It was her choice not to remain for the hearing despite it being clear from my comments to her that the other matters would still proceed. I also took into account that Ms Picos did not seek to have the matter adjourned before she decided to leave the courtroom and that the respondent was ready to argue the matter with counsel in attendance. Furthermore, if Servcorp was correct in its jurisdictional objection, then the balance of the proceeding must be dismissed and it was better for that to occur sooner rather than later with consequential escalation in costs. I also had the benefit of Ms Picos’ written submissions responding to the application for summary dismissal and in support of her own application to which I have had regard, dated 23 January 2015 and 17 March 2015.

9    In these circumstances, I consider that Ms Picos has been given an ample opportunity to be heard. This suffices to discharge the obligation to comply with the natural justice hearing rule. That rule requires the provision of an opportunity only to be heard, and does not require that the person to whom it is extended in fact take advantage of that opportunity: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42] (Giles JA, with whom the remainder of the Court agreed). In line with this rule, the Court has power to dismiss the proceedings where an applicant is in default, including where, as here, the applicant fails to attend a hearing in the proceeding, on application by the respondent under FCR r 5.23(1): see also the definition of when a party is in default under FCR r 5.22(c).

2.2    Does the Court have jurisdiction to entertain the proceeding?

10    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination”. “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2004 (Cth), Part 2 of the Disability Discrimination Act 1992 (Cth), Part II or Part IIA of the Racial Discrimination Act 1975 (Cth), and, relevantly, Part II of the SD Act (including any conduct which is an offence under s 94) in which s 28G appears (collectively, the Unlawful Discrimination Laws). Section 28G makes it unlawful for a person to sexually harass another person in the course of providing, seeking or receiving goods or services.

11    As I explained in Picos v Australian Federal Police [2015] FCA 118 at [35], Part IIB of the AHRC Act prescribes a number of steps:

a)    lodging a written complaint with the AHRC alleging unlawful discrimination (s 46P);

b)    referring the complaint to the President of the AHRC (s 46PD);

c)    requiring the President to inquire into the complaint and attempt to conciliate it (subs 46PF(1));

d)    providing that the President may terminate a complaint on a number of grounds including that the alleged unlawful discrimination is not unlawful discrimination, the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred, or the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (s 46PH);

e)    affording the affected person the right, where a complaint is terminated under ss 46PE or 46PH and the President has given notice, to apply within 60 days to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (subs 46PO(1) and (2));

f)    limiting the right to pursue a claim of unlawful discrimination through the courts to unlawful discrimination which is the same, or the same in substance, as that which was the subject of the terminated complaint, or arises out of the same, or substantially the same, acts, omissions or practices (subs 46PO(3)); and

g)    conferring power on the court to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (subs 46PO(4)).

12    At any time between steps (a) and (d) of the process set out above, the AHRC Act provides that the Court may grant an interim injunction on an application under s 46PP(1) to maintain either the status quo, as it existed immediately before the complaint was lodged, or the rights of any complainant, respondent or affected person. Relevantly, however, s 46PP(3) provides that an interim injunction cannot be granted under s 46PP(1) after the complaint has been terminated under ss 46PE or 46PH.

13    By a letter dated 13 November 2014, the delegate to the President of the AHRC advised the Chief Financial Officer of Servcorp that Ms Picos’ complaint against Servcorp had been terminated pursuant to s 46PH(1)(i) of the AHRC Act. That letter relevantly stated:

Termination of Miss Connie Picos’s complaint against Servcorp Limited

I refer to Miss Connie Picos’s complaint against Servcorp Limited, alleging sexual harassment in the areas of accommodation and goods, services and facilities under the Sex Discrimination Act 1984 (Cth).

Termination of the complaint

Today I informed Miss Picos of my decision to terminate the complaint, pursuant to section 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), as I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.

Possible further action

The AHRCA says that after a complaint is terminated, the complainant may make an application to the Federal Circuit Court or the Federal Court of Australia alleging unlawful discrimination by the respondent to the terminated complaint. The complainant must apply to the Federal Circuit Court or Federal Court within 60 days of the date on the Notice of Termination.

Today I issued Miss Picos with a Notice of Termination.

…

14    That evidence was unchallenged. It follows, as Servcorp submit, that this Court no longer has jurisdiction to grant an interim injunction in these proceedings by virtue of s 46PP(3) of the AHRC Act. The words of s 46PP(3) are proscriptive and allow for no exercise of discretion. The question of whether or not a party has “submitted” to the jurisdiction, as Ms Picos submits, is irrelevant. The parties cannot confer jurisdiction upon the Court which does not exist. The conferral of jurisdiction lies exclusively with the Commonwealth Parliament under Chapter III of the Constitution.

15    Against this, Ms Picos submits that the Court has “unlimited jurisdiction” to make any orders it sees fit in reliance on ss 46PO(4) and (6) of the AHRC Act. Section 46PO(4) provides that, if the Court is satisfied that there has been unlawful discrimination by any respondent, the Court may make such orders as it thinks fit, including orders requiring a respondent to perform any reasonable act, or to vary the termination of a contract or agreement, in order to redress an applicant’s loss or damage (subs 46PO(4)(b) and (e)). Section 46PO(6) of the AHRC Act also provides that the Court may grant an interim injunction pending the determination of the proceedings.

16    Notwithstanding, however, the breadth of the Court’s powers where the jurisdiction under s 46PO is properly invoked, these proceedings are not instituted in accordance with s 46PO(1). On a plain reading of s 46PO, the powers in ss 46PO(4) and (6) are exercisable only in the context of an application under s 46PO(1) alleging unlawful discrimination by the respondents to the terminated complaint and seeking substantive relief. As I have already explained, such an application can be made only where a complaint to the AHRC has been terminated – a statutory precondition with which these proceedings do not comply.

17    This construction is confirmed by the purpose of s 46PP of the AHRC Act. That section provides a means whereby interim injunctive relief can be granted in circumstances where the statutory scheme proscribes the institution of substantive proceedings - which would ordinarily be the vehicle within which to seek interim relief - until a complaint has been lodged and terminated. The purpose of s 46PP is, therefore, spent once a complaint is terminated and substantive proceedings can be commenced. Any relief, final or interim, must at that point be sought through proceedings instituted in accordance with s 46PO of the AHRC Act. That proceedings under ss 46PP and 46PO are separate and distinct is further confirmed by the fact that the power to grant an interim injunction under s 46PO when substantive proceedings are on foot is not limited to maintaining the status quo or the rights of a complainant, respondent or affected person.

18    Finally, the regime set out at [10]-[11] above of which an application under s 46PP forms a part, is an exclusive one for remedying contraventions of the SD Act: see Picos v AFP at [36]-[38] and the authorities referred to therein. In other words, a contravention of s 28G of the SD Act gives rise only to a right to invoke the procedures, and to obtain the remedies, for which provision is made in the AHRC Act.

19    It follows that the Court’s powers under ss 46PO(4) and (6) are not available on an application under s 46PP; nor is there any power to grant relief at “general law”.

2.3    The interlocutory application filed by Ms Picos on 19 November 2014

20    First, it follows for the reasons set out in [16]-[19] above that Ms Picos’ application for this proceeding to be heard pursuant to s 46PO(6) and/or the general law must be refused. Equally there is no proceeding to be joined to proceeding NSD 1179/2014, the present proceedings being without jurisdiction, and to allow their joinder in any event would run counter to the legislative scheme as explained in particular at [17] above.

21    Secondly, Ms Picos applies for a declaration that the affidavit of Mr Moufarrige filed by the respondent on 6 August 2014 is false. However, while the Court may adjudicate upon and make findings of fact in the determination of a matter, it has no power to declare an affidavit false.

22    Thirdly, the application for disqualification against Justice Gleeson must fail on a number of grounds.

(a)    No proper basis for alleging bias or any apprehension of bias is identified by the applicant against Justice Gleeson.

(b)    The point is, in any event, moot as Justice Gleeson has delivered judgment as duty judge in Servcorp (No 1) and is not the docket judge for this matter, and the proceedings must be dismissed for want of jurisdiction.

(c)    Nor, as a trial judge, do I have any capacity to entertain such an application against a fellow judge.

2.4    The applicant’s contention that the respondent is in default

23    Finally, in her submissions filed on 23 January 2015, Ms Picos submits that Servcorp is in default under FCR r 5.22(d). That rule provides that a party is in default for the purposes of r 5.23(2) if (relevantly) the party fails to prosecute or defend the proceeding with due diligence. In turn, FCR r 5.23(2) provides that if a respondent is in default, an applicant may apply to the court for, among other things, an order giving judgment against the respondent for damages to be assessed or any other order. However, quite apart from the fact that the alleged default is not identified and no evidence of any default by the respondent is relied upon, the submission assumes the existence of a jurisdiction to grant relief which for the reasons I have already given does not exist. FCR r 1.32, on which Ms Picos also relies (see at [4] above), can take the matter no further for the same reason.

3.    CONCLUSION

24    The interlocutory application filed by Ms Picos on 19 November 2014 must be dismissed with costs. The proceedings must be dismissed for lack of jurisdiction with costs.

Associate:

Dated:    15 April 2015