FEDERAL COURT OF AUSTRALIA

Picos v Seven West Media Ltd [2015] FCA 660

THE COURT ORDERS THAT:

1.    Proceeding NSD 741 of 2014 is dismissed pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) as against the first and second respondents.

2.    The applicant is to pay the costs of the first and second respondents as agreed or assessed.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an application for disjoinder of the first and second respondents, Seven West Media Ltd (Seven West) and Telstra Ltd (Telstra) (the moving respondents) or, in the alternative, for summary dismissal insofar as the proceeding relates to the moving respondents. For the reasons set out below, there is no reasonable prospect that the applicant, Miss Picos, will succeed as against the moving respondents and her application should be dismissed to this extent.

2.    BACKGROUND

2.1    The complaint to the Australian Human Rights Commission and institution of proceedings in the Court

2    On 13 July 2014, Miss Picos filed a complaint with the Australian Human Rights Commission (the Commission) alleging that she had been sexually harassed. Notice of termination of that complaint was issued by the Commission on 17 December 2014 under s 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) as against HealthEngine Pty Ltd (HealthEngine), Marcus Tan, Adam Yap and Seven West on the ground that the Delegate of the President of the Commission was satisfied there was no reasonable prospect of the matter being settled by conciliation. Insofar as it related to Telstra, the complaint was terminated on the basis that the Delegate was satisfied that it was “misconceived and/or lacking in substance”.

3    Miss Picos instituted these proceedings by an originating application filed on 22 July 2014. By her proposed amended originating application (see below at [10]), the applicant, Miss Picos, claims that the third, fourth and fifth respondents (being her former employer HealthEngine and its officers, Marcus Tan and Adam Yap respectively) sexually harassed and unlawfully discriminated against her contrary to ss 14 and  28B of the Sex Discrimination Act 1984 (Cth) (SD Act). Miss Picos claims that the alleged sexual harassment occurred in June to August 2013 during the course of her employment with HealthEngine. She also alleges that the sexual harassment constituted a breach of her contract of employment, as did “providing the Applicant with an impossible workload, causing the Applicant to significantly work outside of business hours and requesting that the Applicant perform degrading tasks”. Miss Picos further claims that Seven West and Telstra are liable pursuant to various provisions of the SD Act and the law on partnerships by reason of being in partnership with HealthEngine. Miss Picos seeks $7 billion in compensation from the respondents pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth).

2.2    The summary dismissal applications and decision to hear them on the papers

4    By interlocutory applications filed on 22 and 23 December 2014 respectively (the summary dismissal applications), Telstra and Seven West seek orders pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (FCR) removing them as parties on the basis that they were improperly or unnecessarily joined, or alternatively, summary judgment insofar as the proceeding relates to them pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1) of the Federal Court Rules 2011 (Cth) (FCR).

5    At a directions hearing on 5 February 2015, I ordered that the moving respondents file written submissions in support of their summary dismissal applications by 17 February 2015. I also ordered that the applicant file and serve written submissions in reply by 20 February 2015. On the same day I ordered that the summary dismissal applications be listed for hearing on a date to be fixed. I confirmed with the parties in early March 2015 that those applications, as well as three interlocutory applications filed by the applicant, were to be listed for hearing on 14 May 2015.

6    On 24 April 2015, Miss Picos communicated to the Court that she was no longer able to attend the hearing on 14 May 2015 and requested an adjournment, indicating that she may require up to four months.

7    Further to a request from the first respondent, I called the matter on for directions on 6 May 2015. On that day I acceded to an oral application by the moving respondents that the summary dismissal applications be decided on the papers, notwithstanding Miss Picos’ opposition to that course. In making that decision I had regard to s 37M of the FCA Act, requiring the just resolution of proceedings according to law and as quickly, inexpensively and efficiently as possible. In particular, I considered that a decision on the papers was just and appropriate given that:

(1)    Miss Picos had been afforded an opportunity to file evidence in support of her substantive application by 23 January 2015 pursuant to orders made on 12 December 2014 and had in fact filed her evidence pursuant to that order, including affidavits filed on 29 December 2014, 8 January 2015, 19 January 2015 and 23 January 2015;

(2)    by consent, Miss Picos tendered further evidence at the directions hearing on 6 May 2015 in relation to the summary dismissal applications, being the HealthEngine Twitter account records in line with her interlocutory application filed on 23 March 2015;

(3)    written submissions on the summary dismissal applications were filed by the moving respondents and submissions in reply were filed by Miss Picos substantially in accordance with the timetable set by me on 5 February 2015; and

(4)    the moving respondents accepted that the summary dismissal applications should be determined on the basis of Miss Picos’ proposed amended pleadings and taking the evidence relied upon by Miss Picos at its highest.

8    I also had regard to the amount of time that had already elapsed since the summary dismissal applications were filed and the need to bring the proceedings to a conclusion as against the moving respondents before further time and resources were expended if they were right in contending that the applications against them were misconceived. This consideration had added weight given the seriousness of any allegation of sexual harassment.

9    By an application filed on 28 May 2015, Miss Picos seeks leave to withdraw all of her outstanding interlocutory applications and to amend the originating application to be substantially the same as the amended statement of claim filed on 23 January 2015 (the proposed amended pleading). I understand this to be a reference to the proposed amended statement of claim dated 23 January 2015 filed by Miss Picos on 29 January 2014, in which she asserts among other things that Seven West, Telstra and HealthEngine are liable pursuant to ss 14, 28B, 105, 106 and 107 of the SD Act, and pursuant to the law of partnerships.

10    At the hearing of Miss Picos’ interlocutory application in early June 2015, counsel for the first respondent indicated that Seven West consents to the application, on the basis that the submissions filed by Seven West in support of its summary dismissal application addressed Miss Picos’ claim in the proposed amended pleading. Similarly, Telstra’s submissions in support of their application were made on the basis of Miss Picos’ proposed amended pleading. However, unlike Seven West, Telstra opposes the grant of leave to amend the originating application.

11    Given that both the first and second respondents have made their applications in response to the applicant’s proposed amended pleading and that such an approach is most favourable to the applicant, I have decided the summary dismissal applications on the basis of Miss Picos’ proposed amended pleading and deferred the question of whether leave to amend should be granted pending the outcome of these applications.

3.    EVIDENCE

12    Telstra’s application is supported by an affidavit of Jacqueline Anne Harrop affirmed on 19 December 2014, while Seven West relies upon two affidavits affirmed by Ruveni Desaa Kelleher on 23 December 2014 and on 21 April 2015

13    In addition to the HealthEngine Twitter Records (to which I referred at [7] above), Miss Picos relied upon her affidavits affirmed on 29 December 2014, on 8 January 2015, on 18 January 2015 (headed “Hearing Affidavit”) and on 23 January 2015. Miss Picos also relied upon four sets of submissions as follows:

(1)    Applicant’s First Legal Submissions filed 29 January 2015;

(2)    Applicant’s Second Legal Submissions filed 16 February 2015;

(3)    Applicant’s Third Legal Submissions filed 16 February 2015; and

(4)    Applicant’s Fourth Legal Submissions filed 20 February 2015.

4.    RELEVANT PRINCIPLES

14    Section 31A of the FCA Act relevantly provides that:

(2)  The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)  the first party is defending the proceeding or that part of the proceeding; and

 (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)  hopeless; or

(b)  bound to fail;

for it to have no reasonable prospect of success.

15    It is apparent from subs (3) that to obtain summary judgment, it is no longer necessary to demonstrate that the cause of action is “manifestly groundless” or “obviously untenable”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); cf Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92 (Dixon J), and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130 (Barwick CJ). Rather, as Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”… [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

16    Furthermore, summary dismissal may be warranted on a variety of bases. As French CJ and Gummow J observed in Spencer at [22]:

It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

17    Nonetheless, as the moving respondents submit, the discretion must be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Its concern, therefore, is “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (approved in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)). Thus, s 31A does not empower the summary dismissal of a cause of action inadequately pleaded unless the inadequate pleading discloses that there is no reasonable cause of action: Ghanem v Australia Reserch Council [2014] FCAFC 132 at [19] (the Court). The power can be exercised only if the court is satisfied that there is no reasonable prospect of success: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). The application of that pre-condition requires the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski at 409 [28] (the Court).

18    Rule 26.01(1) of the FCR provides that:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

19    The test for summary dismissal under r 26.01(a) FCR is the same as that in s 31A of the FCA Act: Shammas v Canberra Institute of Technology [2014] FCA 71 at [13] and [50]-[51] (Foster J).

20    Finally, in the alternative, the moving respondents seek disjoinder under FCR r 9.08 which provides that:

A party may apply to the Court for an order that a party that has been improperly or unnecessarily joined as a party, or has ceased to be a proper or necessary party, cease to be a party.

21    In the circumstances, however, I have decided that the proceeding should be dismissed as against Seven West and Telstra and therefore it is unnecessary to consider the application under r 9.08 which was relied upon in the alternative.

5.    CONSIDERATION

5.1    Introduction

22    In paragraph 5 of the proposed amended pleadings, which deals with her claims against Seven West and Telstra, Miss Picos alleges that:

HealthEngine is a business partnership. [Seven West and Telstra] partnered with [HealthEngine] in May 2013 to form the business partnership. [Seven West, Telstra and HealthEngine] are liable pursuant to the Sex Discrimination Act 1984 section 28B, section 105, section 106, section 107 and pursuant to the law on partnerships.

23    Furthermore, at paragraph 17, Miss Picos alleges that the moving respondents “caused, induced, aided and permitted” the third, fourth and fifth respondents to sexually harass and unlawfully discriminate against her from June 2013.

24    None of the material facts which constitute the elements of the statutory causes of action relied upon against the moving respondents are pleaded, nor any facts on the basis of which it is said that the moving respondents and HealthEngine were in partnership. These are not bare pleading deficiencies. For the reasons given below, the pleadings in part reveal that there is no reasonable cause of action with the result that the deficiency is incurable and it is otherwise apparent from the evidence on which the parties would seek to rely were the matter to proceed to trial that the claims made against Telstra and Seven West have no reasonable prospect of success.

5.2    Section 14, SD Act

5.2.1    No discrimination in employment alleged against the moving respondents

25    Section 14 of the SD Act proscribes discrimination by an employer against an employee or potential employee on the grounds of sex or gender identity, relevantly, as follows:

(1)    It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)    in the arrangements made for the purpose of determining who should be offered employment;

(b)    in determining who should be offered employment; or

(c)    in the terms or conditions on which employment is offered.

(2)    It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)    in the terms or conditions of employment that the employer affords the employee;

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

26    By paragraph 2 of the proposed amended pleading, Miss Picos alleges that HealthEngine employed her from June 2013. She does not allege that Telstra or Seven West employed her or discriminated against her as an employee or prospective employee. The unanswered evidence of the moving respondents establishes the contrary. Searches undertaken by Telstra for the period 2010 to 18 December 2014 reveal that neither Miss Picos or Adam Yap had been employed by Telstra. While those searches disclosed that a person by the name of Marcus Tan had been engaged as a contractor, he had a different date of birth from the fourth respondent. Similarly, searches of the employee records for Seven West demonstrated that it had not employed anyone or engaged any contractors by the applicant’s name or by the name of Adam Yap or Marcus Tan.

5.2.2    The attempt to attribute liability to the moving respondents based upon the allegation that they are in partnership with HealthEngine

27    In the proposed amended pleading, Miss Picos also alleges that Seven West and Telstra formed a business partnership with HealthEngine in May 2013 and appears to seek to attribute liability for the sexual harassment or discrimination claim to the moving respondents based upon the allegation of a partnership. This is denied by the moving respondents and Seven West led evidence that it has never been in partnership with Telstra or HealthEngine.

28    In her fourth legal submissions, Miss Picos submits that

(b)    The constituents of the partnership are:

i.    Seven West Media;

ii.    Telstra Corporation; and

iii.    HealthEngine Pty Ltd.

(c)    HealthEngine Pty Ltd is a corporation.

i.    It is a separate legal entity to the business partnership known as “HealthEngine”.

ii.    It is an agent of the business partnership known as “HealthEngine”.

iii.    HealthEngine Pty Ltd is able to bind the other constituents of the “HealthEngine” business partnership, being Seven West Media and Telstra.

iv.    Marcus Tan and Adam Yap are able to bind the HealthEngine business partnership, and Seven West Media and Telstra, within the scope of the HealthEngine business partnership.

…

(e)    HealthEngine Pty Ltd is a subsidiary of Telstra Corporation Ltd and Seven West Media Ltd, pursuant to the Corporations Act 2001, based on control.

(f)    Telstra Corporation Ltd and Seven West Media are liable for HealthEngine Pty Ltd.

(g)    The five respondents breached section 14 and section 28B of the Sex Discrimination Act, including by way of sections 105, 106 and 107.

29    In her affidavit affirmed on 29 December 2014 she also states (in what are in truth submissions rather than evidence) that:

(a)    State law has regulated business partnerships since the 1800s. The state of New South Wales has the Partnership Act 1892. The state of Western Australia has the Partnership Act 1895.

(b)    ‘Partnership’ is defined in section 1 of the New South Wales act.

(c)    ‘Partnership’ is defined in section 7 of the West Australian act.

(d)    Partners are liable for the acts of other partners in a partnership.

(e)    Persons are liable where held out as partners.

30    I note in this regard that s 46 of the Partnership Act 1892 (NSW) and s 6 of the Partnership Act 1895 (WA) provide that the rules of equity and common law applicable to partnership continue in force save insofar as they are inconsistent with the express provisions of those Acts.

31    The evidence on which Miss Picos seems to rely on in support of her contention as to a partnership is as follows:

(1)    the announcement dated 8 May 2013 that “Telstra and Seven West Media have agreed to enter into a $10.4 million strategic partnership with HealthEngine… Telstra and Seven West Media will each invest $5.2 million through a combination of cash and value-in-kind to secure a significant stake in the business.”

(2)    an advertisement for a position with HealthEngine which, under the heading “About HealthEngine” states that “HealthEngine has strategically partnered with Telstra and Seven West Media, the leading communications and media providers in Australia.”

(3)    the statement on the HealthEngine website that it is “Proudly partnered with” Telstra and Seven West Media, among others;

(4)    a company search for HealthEngine annexed to the affidavit of Jacqueline Anne Harrop affirmed 19 December 2014 showing that “a subsidiary of Telstra Corporation owns 50 per cent of the convertible preference shares in HealthEngine Pty Ltd”; and

(5)    the statement on the HealthEngine Twitter account that HealthEngine is “[p]artnered with Seven West Media & Telstra.”

32    There are a number of fundamental flaws with this aspect of Miss Picos’ claim.

33    First, as Seven West contends, sexual harassment is a creature of statute only. As I explained in Picos v Australian Federal Police [2015] FCA 118:

34. 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, Part 2 of the Disability Discrimination Act 1992, Part II [or IIA] of the Racial Discrimination Act 1975, 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.

…

36. It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] RD Nicholson J (Bropho) and French v Gray (2013) 217 FCR 404; [2013] FCA 263 at [149]-[151] Besanko J (holding that Re East; ex parte Nguyen (1998) 196 CLR 354 at [26], [31]-[32] continued to apply notwithstanding removal of the complaint procedure from (in those cases) the [Racial Discrimination Act 1975] and its re-enactment in Part IIB of the AHRC Act). 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 provided for, in the AHRC Act.

34    It follows that Miss Picos cannot sue for an alleged contravention of the SD Act based upon the law of partnerships. The fact that she does not allege that she was employed by Seven West and Telstra, and that the unanswered evidence establishes that she was not, is the end of the matter.

35    Secondly, a partnership is a relation between persons carrying on a business in common with a view of profit: s 1(1), Partnership Act 1892 (NSW) and s 7(1), Partnership Act 1895 (WA). Yet at its highest, all that the evidence on which Miss Picos would rely establishes is that, while none of the ordinary shares are held by subsidiaries of Telstra or Seven West, Telstra Ventures Pty Limited (a subsidiary of Telstra) and Seven West Media Investments Pty Limited (a subsidiary of Seven West) each hold 3,948,000 of the 7,896,000 convertible preference shares in HealthEngine. That a relationship of that kind does not constitute a partnership is explicitly recognised in s 1(2) of the Partnership Act 1892 (NSW) and s 4 of the Partnership Act 1895 (WA). In short, in context, the description in public statements of the relationship as a “partnership” or “strategic partnership” on which Miss Picos relied provides no evidence of the existence of a partnership in law. The word “partnership” is plainly used in those statements in a loose, colloquial sense to refer to what is no more than a strategic decision by Telstra and Seven West to purchase an equal number of convertible shares in HealthEngine.

36    It follows that there is no basis on which a claim could reasonably succeed against Telstra or Seven West for a breach of s 14 of the SD Act, even if (which I doubt) the allegations made by Miss Picos were capable on any view of constituting sexual discrimination.

5.3    Section 28B, SD Act

37    Section 28B proscribes sexual harassment in the workplace in the following terms:

(1)    It is unlawful for a person to sexually harass:

(a)    an employee of the person; or

(b)    a person who is seeking to become an employee of the person.

(2)    It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3)    It is unlawful for a person to sexually harass:

(a)    a commission agent or contract worker of the person; or

(b)    a person who is seeking to become a commission agent or contract worker of the person.

(4)    It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5)    It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6)    It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.

…

38    “Sexual harassment” as defined in s 28A includes the making of an unwelcome sexual advance, an unwelcome request for sexual favours, or engaging in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

39    Section 28B(7), in turn, provides that a workplace “means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant” and defines a “workplace participant” to mean any of the following:

(a)    an employer or employee;

(b)    a commission agent or contract worker;

(c)    a partner in a partnership.

40    It is apparent, in my view, from the fact that both of these definitions in s 28B(7) use the expression “means”, as opposed to “includes” or a like term, that they are intended to be exhaustive. In other words, unless a place meets the criteria in the definition in s 28B(7) of a “workplace”, then that place will not be a workplace for the purposes of the Act. Equally, unless a person meets one of the criteria in paragraph (a) to (c) of the definition of a “workplace participant” in s 28B(7), that person will not be a workplace participant for the purposes of the Act.

41    For the reasons earlier given, there is no allegation that Miss Picos was employed by either of the moving respondents. To the contrary, the unanswered evidence is that she was not employed by them. For the reasons earlier given, the allegations of a partnership are misconceived. The claim against Telstra and Seven West for an alleged contravention of s 28B of the SD Act has no reasonable prospect of success.

5.4    Section 105, SD Act

42    Section 105 of the SD Act which Miss Picos also seeks to call in aid, provides that:

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.

(Emphasis added.)

43    As s 105 applies only to unlawful acts under Divisions 1 or 2 of Part II, it can apply only to the allegations in relation to s 14 of the SD Act and not s 28B because the latter is located in Division 3 of Part II. With respect to those provisions to which it applies, s 105 operates to “extend” their scope by making it clear that persons who have aided in a contravention of s 14 will be taken to have done the act which constitutes the contravention.

44    Miss Picos’ claim in this regard is made in paragraph 17 of the proposed amended pleadings which states:

The Applicant complained to [Seven West] and [Telstra] throughout 2013 and 2014 about [HealthEngine, Mr Yap and Mr Tan]. The Applicant gave notice to [Seven West] and [Telstra] of the loss and damage suffered by the Applicant. [Seven West] and [Telstra] caused, induced, aided and permitted [HealthEngine, Mr Yap and Mr Tan] to sexually harass and unlawfully discriminate against the Applicant from June 2013. [Seven West] and [Telstra] gave [HealthEngine, Mr Yap and Mr Tan] a further $5.2 million around May 2014. [Seven West] and [Telstra] are liable pursuant to the Sex Discrimination Act 1984 section 105.

45    The short answer is that none of these allegations were raised in Miss Picos’ application to the Commission. As I have mentioned, a contravention of Division 1 or 2 of Part II gives rise only to the right to invoke the processes, and obtain the relief provided for, in the AHRC Act. As Katzmann J held in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78]-[79]:

Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 [of the SD Act] and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].

It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as [sic] the case for a breach of s 94 of the SDA is not available.

46    Her Honour’s decision in this respect was upheld on appeal in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71] (the Court) which held that neither the AHRC Act, nor the SD Act, created or gave rise to any common law cause of action for relief.

47    Section 46PO(3) of the AHRC Act relevantly limits the right to pursue a claim to 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 acts, omissions or practices.

48    Manifestly, in my view, a claim of unlawful discrimination based upon complaints allegedly made throughout 2013 and 2014 to Seven West and Telstra as now alleged, and upon new allegations that Seven West and Telstra caused, induced, aided, and permitted HealthEngine, Mr Tan and Mr Yap to sexually harass and unlawfully discriminate against Miss Picos, is different in substance from the claim made in the application to the Commission in which no such allegations are made. As such, the Court lacks jurisdiction to entertain the claim to this extent.

49    Secondly, no material facts are pleaded in support of the new complaints. Nor does Miss Picos’ evidence rise higher than her claim that Seven West and Telstra are in partnership with HealthEngine. Not only, even if a partnership existed, would that fall far short of establishing the serious allegations now sought to be raised against Seven West and Telstra, but for the reasons earlier given, the allegation that a partnership existed has no reasonable prospect of success.

5.5    Section 106, SD Act

50    Section 106 of the SD Act provides that:

106 Vicarious liability etc.

(1)    Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)    an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)    an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

51    Section 106 applies to unlawful acts under Divisions 1, 2 and 3 of Part II and therefore ensures in cases where the act was undertaken by the employee or agent in connection with their employment or within their duties as an agent that (relevantly) ss 14 and 28B will apply as if the employer or principal had also done the act. Again, however, the claim cannot succeed given that Miss Picos neither alleges, nor was in fact, employed by Seven West or Telstra, and in so far as her claim rests on the allegation of a partnership, it has no reasonable prospects of success.

5.6    Section 107, SD Act

52    Finally, s 107 of the SD Act provides that:

107 Acts done on behalf of bodies

(1)    Where, for the purposes of this Act, it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate in the matter so acted on that ground.

53    It is entirely unclear on what basis Miss Picos seeks to rely upon s 107 of the SD Act. It grounds, as Telstra submits, no cause of action and does not appear to assist her in any other way.

5.7    Contract

54    Finally, the allegation of breach of contract relates to Miss Picos’ contract of employment with HealthEngine. For the reasons earlier given, she was not an employee of the moving respondents, and any claim against them on this ground must fail.

6.    CONCLUSION

55    The application instituted by Miss Picos should be dismissed with costs in so far as it relates to Telstra and Seven West.

Associate:

Dated:    1 July 2015