FEDERAL COURT OF AUSTRALIA

Eliezer v University of Sydney [2015] FCA 1045

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to amend the originating application is dismissed.

2.    The proceedings are summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

3.    The applicant is to pay the respondents’ costs of the applications in orders 1 and 2 above and otherwise of or incidental to the proceedings 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    The applicant, Mrs Supriya Eliezer, studied as a doctoral student with the first respondent, the University of Sydney (the University), and was employed relevantly at the same time by the University as an Associate Lecturer in the Discipline of Accounting.

2    By an originating application filed on 27 October 2014, Mrs Eliezer seeks an apology, together with compensation for past and future earnings, general damages and exemplary damages. The claims are made under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) against the second to fifth respondents for alleged breaches of ss 14, 21 and 22 of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) for sex and pregnancy discrimination in the course of employment, education and the provision of services and facilities. The claim against the University would appear to be that it is vicariously liable for the conduct of the other respondents pursuant to s 106 of the Sex Discrimination Act, although the pleadings do not always differentiate between the claims against the University and the other respondents. The allegations focus on the period between November 2007 and March 2008 commencing shortly before Mrs Eliezer’s return from maternity leave on 27 November 2007.

3    By an interlocutory application filed on 29 May 2015, the respondents seek summary dismissal of the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (FCR), or in the exercise of the Court’s implied or inherent power to dismiss proceedings, on the ground that they constitute an abuse of process. Specifically, the respondents contend that:

(a)    the Court lacks jurisdiction to determine the proceedings against the second to fifth respondents (the jurisdictional issue); and

(b)    the applicant’s delay in commencing the proceedings against the respondents alone or together with other factors amounts to an abuse of process or otherwise justifies summary dismissal (the abuse of process issue).

4    In the alternative, the respondents contend that the application does not disclose a reasonable cause of action or the Court should strike out paragraphs [54], [57] and [60] of the statement of claim which relate to the applicant’s claim for loss and damage. In the further alternative, the respondents seek an expedited trial. As I have upheld the claim for summary dismissal on grounds (a) and (b) above, it is unnecessary to consider these alternatives.

5    The respondents’ application is supported by the affidavits of Ms Kathy Srdanovic, solicitor for the respondents, sworn 29 May 2015 and 6 July 2015, and both parties filed written submissions in advance of the hearing.

6    Before the Court is also the interlocutory application filed by Mrs Eliezer on 1 September 2015. Mrs Eliezer seeks leave to file an amended application pursuant to r 8.21(1)(g) of the FCR, for the hearing of the respondents’ interlocutory application on 14 September 2015 to be adjourned to a date to be fixed, and for her husband to be appointed as her litigation representative. That application is supported by her affidavit sworn on the same date and by written submissions signed by Mrs Eliezer dated 9 September 2015. The respondents rely upon a further affidavit of Ms Srdanovic sworn on 8 September 2015 in opposition to Mrs Eliezer’s interlocutory application.

7    Ultimately Mrs Eliezer pressed only her application to amend the originating summons which she contends should be determined before the respondents’ interlocutory application. She did not press her application for the hearing to be adjourned.

8    The application for Mrs Eliezer’s husband to be appointed as her litigation representative was also abandoned upon my granting leave for her husband, Mr Eliezer, to make submissions on her behalf in somewhat unusual circumstances. Mr Eliezer advised the Court that he is legally qualified and newly admitted to the Supreme Court of New South Wales, holding a restricted practising certificate (as indeed does his wife). I do not consider that it was open to Mrs Eliezer to rely upon s 46PQ(1)(c) of the AHRC Act in such circumstances as a basis on which her husband could make submissions on her behalf because that provision applies only where the person is not a barrister or solicitor. Nor was Mr Eliezer seeking to represent his wife in his capacity as a solicitor under s 46PQ(1)(b) and in any event he has no right of appearance in this Court as he is not on the Register of Practitioners kept by the Chief Executive and Principal Registrar of the High Court of Australia: see s 55B(3) of the Judiciary Act 1903 (Cth). In the circumstances, including Mrs Eliezer’s alleged difficulties in making submissions on her own behalf and the fact that no objection was raised by the respondents, I permitted Mr Eliezer to make submissions for his wife on this occasion with his assurance that he was cognisant of, and would comply with, his ethical obligations as an admitted practitioner of the Supreme Court of New South Wales.

2.    BACKGROUND

2.1    The parties

9    Mrs Eliezer commenced the degree of Doctor of Philosophy (PhD) at the University on 25 July 2005. Subsequently on 1 February 2006 she also commenced employment with the University as an Associate Lecturer in Accounting on a three-year fixed term contract.

10    Each of the second to fifth respondents were employees of the University for all or part of the period when the alleged discrimination took place. The second respondent, Mr James Guthrie, was Chair of the Discipline of Accounting for the period 11 September 2006 to 30 September 2009 when he ceased employment with the University. He is now an Honorary Professor at the University. The third respondent, Dr Sharron O’Neill, was Lecturer-in-Charge of Accounting Unit ACCT1001 during the first semester in 2008 and ceased employment with the University on 30 September 2011. She was Mrs Eliezer’s supervisor following her return from maternity leave. The fourth respondent, Professor John Roberts, was employed as Associate Professor in the Discipline of Accounting in December 2006, and was appointed Professor in that Discipline in 2008. He was also PhD coordinator during the period of Semester 2 in 2008. He remains an employee of the University. The fifth respondent, Professor Sue Newberry, was the PhD Co-ordinator from January 2006 to 2011 save for Semester 2 in 2008. She has been employed by the University since 1 July 2005 and was appointed a Professor in the Discipline of Accounting from 1 January 2013.

2.2    Alleged conduct in breach of the Sex Discrimination Act

11    On 11 August 2007, Mrs Eliezer commenced a period of six days annual leave followed by maternity leave comprising 14 weeks of paid leave. She returned from maternity leave on 27 November 2007. She commenced paid sick leave from 31 March 2008 and did not return to work. On 29 August 2008, her PhD was suspended and remained so until mid-2010. On 31 March 2011, she was withdrawn from the PhD program.

12    As mentioned, the conduct complained of is alleged to have commenced shortly before Mrs Eliezer returned from maternity leave, and occurred primarily in the period November 2007 to March 2008. It is by reason of the events in that period that Mrs Eliezer alleges that she suffered psychological injury although some of her complaints as to the alleged failure by the respondents to provide her with suitable references and support postdate this period.

2.3    The applicant’s compensation claims

13    Mrs Eliezer lodged a compensation claim dated 9 May 2008 against the University, having given notice of her injury on 14 April 2008. She received workers compensation, the date of injury for workers compensation purposes being 9 May 2008.

14    Mrs Eliezer provided a statement as part of her workers compensation claim which was attached to her application to resolve a dispute dated 24 April 2009. In her statement she alleged “Date of Injury: Nature and conditions of employment from 2006 up to and including 14 may [sic] 2008”, and described her injury as “psychological injuries including anxiety and severe depression”. She further stated that:

During the course of her employment with the Respondent, the applicant was repeatedly bullied, treated unfairly, abused, harassed and overworked, and thereby sustained serious psychological injuries including anxiety and severe depression.

15    She voluntarily terminated her workers compensation payments, ceasing on 29 June 2011, because she did not consider that they were assisting her recovery.

2.4    The complaint to the Australian Human Rights Commission

16    Mr Eliezer submitted a complaint on his wife’s behalf against the University to the Australian Human Rights Commission (the Commission) on 13 March 2014. That complaint was terminated by a delegate of the President of the Commission (the President) under s 46PH(1)(b) of the AHRC Act in the exercise of discretion on the ground that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.

2.5    The proceedings instituted in this Court

17    In her originating application, Mrs Eliezer alleges that the respondents or some of them engaged in direct and indirect sex and pregnancy discrimination in education in:

(a)    compelling her to attend the annual PhD review meeting in November 2007 when she was still on maternity leave with a two-month-old child;

(b)    treating her maternity with ridicule and derision at that meeting;

(c)    imposing a condition that she must re-enrol in the PhD if she wished to keep her job;

(d)    assigning her an unsatisfactory progress outcome in the meeting in November 2007 without prior warning or notice and in the subsequent year;

(e)    failing to remove the unsatisfactory progress outcomes from her annual reports for 2007 and 2008; and

(f)    imposing further conditions in 2009 and 2010 which made it impossible for her to continue her PhD.

18    Mrs Eliezer also alleges that the respondents engaged in direct and indirect sex and pregnancy discrimination in employment in that:

(a)    her expression of interest for the subjects she wished to teach was ignored;

(b)    on her return to work, an onerous workload was imposed on her with unrealistic time frames for completion, her work duties were modified to include tasks which she had previously not been required to do with deadlines inconsistent with normal practice, she was approved to be tutor-in-charge of the largest undergraduate course in the Discipline without being consulted, she was required to do menial tasks and subjected to unwarranted criticism and bullying, and she was subjected to a performance appraisal without her knowledge;

(c)    the respondents failed to cooperate with the treating doctors return to work plan; and

(d)    the respondents failed to provide adequate support and references to enable her to secure alternative employment and provided a reference almost a year later stating that “there was setbacks to progress associated with maternity leave”.

19    The statement of claim among other things makes numerous allegations about alleged conversations between her and the second to fifth respondents, the tone in which things were allegedly said, the state of mind of those allegedly bullying her, and the impact of the alleged conduct upon her.

20    Under the heading “Loss and Damages” in the statement of claim, Mrs Eliezer alleges as follows:

54.    The Applicant suffered psychological harm and injury.

54.1    In the short period that the Applicant worked following maternity leave from November 2007 to March 2008 she sustained psychological harm and injury as a direct result of the harassment and bullying she experienced.

54.2    Clinical psychologist, Louise Morrow of LM Psychology, assessed the Applicant as suffering from major depressive disorder requiring psychological intervention in her report dated 30 June 2008.

54.3    The Applicant’s treating doctor stated to Ms. Morrow that the Applicant presented as very depressed and agitated and the precipitating factor appeared to be the harassment by the Applicant’s manager.

54.4    Clinical psychologist, Dr. Lydia Bennett, concurred with the treating doctor.

55.    From December 2007 onwards, the Applicant’s spouse provided full-time care to the Applicant for several years.

56.    The Applicant was deprived of possible spousal income due to loss of opportunity arising from spouse being engaged in full-time care.

57.    The Applicant has suffered loss of earnings.

57.1    In the circumstances created by the Respondents, the Applicant was not able to obtain another University position and her career came to an abrupt end.

57.2    The Applicant applied to a number of Universities and was short-listed for interview in some instances.

57.3    A University in a regional location interviewed the Applicant twice. The first interview being promising, she was called for a second interview. She was asked questions about the status of her research following which she learnt that she had not been selected.

57.4    A University in Sydney interviewed the Applicant twice. The first interview being successful, she was called for a second interview where she was asked for her Ph.D. supervisor’s name. The Applicant gave the name and was unsuccessful in getting the job.

57.5    The actions of the Respondents in not providing suitable references and support and the unsatisfactory progress recorded in her Ph.D. contributed to the Applicant not being selected for these positions.

57.6    The Applicant’s annual income at the time of her employment with the First Respondent was around $ 85,000. From February 2009 to February 2015, the Applicant’s lost earnings include $85,000 x 5 = $425,000.

58.    The Applicant is facing loss of future income.

58.1    The Applicant is currently not enrolled in a Ph.D.

58.2    In the circumstances pleaded in paras 57.5 and 58.1, the Applicant has no prospects of obtaining another academic position.

58.3    Loss of future earnings for a period of eight years from February 2015 would amount to $85,000 x 8 = $680,000.

59.    The Applicant has suffered loss of opportunity for promotion and advancement in her chosen career.

59.1    The Applicant’s peers have progressed to lecturer position or higher.

59.2    As per Schedule 1 of the Enterprise Agreement, moving from Associate Lecturer to Lecturer at the same salary step, there is an increment of $19,000 in the salary.

59.3    The value of the loss of promotion is approximately $ 19,000 x 8 = $152,000.

21    Mrs Eliezer also seeks exemplary damages against the first respondent in the sum of $3 million and in the sum of $300,000 from each of the second to fifth respondents.

22    The submissions, however, by Mrs Eliezer and by Mr Eliezer on her behalf at the hearing on whether a claim was made for damages for psychological injury were, with respect, somewhat confused. As best I can discern:

(a)    Mr Eliezer submitted that the claim was a claim for sex discrimination and not a personal injuries claim as was illustrated by the claim for damages based upon the alleged actions of the respondents in not providing suitable references.

(b)    However, in Mr Eliezer’s submissions, the injury suffered by Mrs Eliezer “may have a bearing on the general damages that are sought” and may establish a link for a claim for higher general damages or aggravated damages.

(c)    No damages are sought for medical expenses.

23    When I sought to clarify the position with Mrs Eliezer directly, she said that she did not have a clear position on whether or not she would claim damages for psychological harm and injury by reason of the alleged sex discrimination.

24    Notwithstanding the confusion which arises from the oral submissions, in my view the originating application and statement of claim cannot sensibly be read otherwise than as embodying such a claim consistently with the respondents’ understanding of the pleadings. This would seem to be consistent with the submission by Mr Eliezer that his wife’s injury may bear on the general damages claim, i.e., that it is a component of that claim. Nor as Mrs Eliezer’s answer indicates, does she at this stage at least intend to abandon that claim. Furthermore, the submission that the claim was not a personal injuries claim appears to have been made in response to the respondents’ submission that the claim for compensation for personal injuries was the fulcrum of Mrs Eliezer’s claim and was intended to suggest that the claim would not necessarily fall away completely even if there were deficiencies in the claim for damages for personal injury.

25    In this regard, it may be that aspects of the claim would survive if the only deficiencies lay in the claim for personal injury such as the claim for an apology and possibility of a claim for damages for sex discrimination. Certainly claims under the AHRC Act are not limited to claims for compensation. However, it must also be said that the issue raised with respect to the provision of references is not presented as an alternative or separate claim, but rather as constituting sex or pregnancy discrimination when considered in the context of the alleged sex or pregnancy discrimination which occurred between November 2007 and March 2008 or as a continuation of that discrimination. The focus of the claim, as Mrs Eliezer accepted in her written submissions, was the conduct which occurred between those dates.

2.6    Steps taken by the respondents to clarify the claim against them

26    The respondents first raised concerns with respect to the claim with Mrs Eliezer in a letter dated 3 February 2015. These included a concern that the respondents are potentially prejudiced by the significant delay in the bringing of proceedings in such matters as the identification and location of relevant documents and the recollections of witnesses, and by the lack of particularity in the originating application.

27    Mrs Eliezer filed a statement of claim on 31 March 2015 in line with timetabling orders made on 30 March 2015 granting her leave “to file and serve the fully particularised Statement of Claim”.

28    On 16 April 2015, the respondents wrote again setting out their concerns that the statement of claim was an abuse of process of the Court including because of the prejudice caused by the significant delay and because it failed to disclose a reasonable cause of action. The letter also alleged that the Court lacked jurisdiction to entertain the proceedings against the second to fifth respondents because they were not respondents to the terminated complaint lodged with the Commission. The letter invited Mrs Eliezer to consider discontinuing the proceedings in their entirety or against the second to fifth respondents, or re-pleading the statement of claim to address certain of these concerns, and otherwise foreshadowed an application for summary judgment.

29    In her reply dated 30 April 2015, Mrs Eliezer stated that the statement of claim would be amended to address the respondents’ concerns. Similarly, in her response dated 15 May 2015 to the respondents’ request for further and better particulars, Mrs Eliezer again referred to her intention to re-plead aspects of her case in an amended statement of claim.

30    By letter dated 25 May 2015, the respondents sought urgent advice as to whether, as foreshadowed, Mrs Eliezer intended to amend her statement of claim and, if so, when it would be provided. The respondents also requested further information about the assertion in paragraph 54 of the statement of claim that Mrs Eliezer suffered psychological harm and injury. Mrs Eliezer responded by letter dated 12 June 2015 in which she states:

In relation to your request for particulars of injury, the information is available in workers’ compensation documents which you have already obtained:

1(a) In the period 2007 December to March 2008 [in answer to the respondents’ question of when the injury was sustained]

1(b) Severe depression and anxiety [in answer to the respondents’ question as to the nature of the injury]

1(c) Was unfit for work from 14 April 2008 [in answer to the respondents’ question as to when the injury was diagnosed]

1(d) Workplace difficulties [in answer to the respondents’ question as to the cause of the injury]

3.    SHOULD THE APPLICATION FOR SUMMARY DISMISSAL AWAIT THE PROVISION OF A FURTHER AMENDED ORIGINATING APPLICATION?

31    Mrs Eliezer contends that the respondents’ application for summary dismissal should not be determined “before the Applicant has been given the opportunity to fully articulate her claim against the Respondents”, that is, before she has the opportunity to amend her originating application. However, I consider that Mrs Eliezer has been afforded more than an ample opportunity to re-plead her case.

32    The chronology set out above demonstrates that Mrs Eliezer has been aware since at least mid-April 2015 of the respondents’ concerns with her pleadings. Yet there is no evidence explaining why no amended statement of claim has ever been provided, despite Mrs Eliezer having expressed an intention to do so on a number of occasions and despite invitations by the respondents to do so and to indicate the time within which any such amended statement of claim might be provided. Nor has Mrs Eliezer given any indication of how she might amend the statement of claim to meet the difficulties raised by the respondents. Furthermore, Mrs Eliezer seeks by her application on 1 September 2015 to amend only her originating application and to do so only so as to expand the claim to include new possible causes of action rather than address existing difficulties subject to one caveat which I address below (at [54]). In this regard, the only information about the proposed amendments to the originating application is that set out in the applicant’s submissions filed on 9 September 2015, namely, that she seeks to plead disability discrimination relying on some of the facts already pleaded, and to seek redress for “associated matters that arise from the same facts. In the present case the associated matters are likely to include remedies under contract law, and breaches of Work Health and Safety Act 2011 (NSW).”

4.    THE APPLICATION FOR SUMMARY DISMISSAL

4.1    Principles governing a summary judgment application

33    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.

34    The principles governing the application of s 31A are well established and may be summarised as follows.

35    First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

36    Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130…”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); see also Cassimatis at 271 [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [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.

37    Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates 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 v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at 408-409 [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at 272 [50] (Reeves J).

38    In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at 409 [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).

39    Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at 271-272 [46] that:

…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

40    To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

4.2    Consideration of the application for summary dismissal of the claims against the second to fifth respondents on jurisdictional grounds

41    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” under various Commonwealth anti-discrimination laws (collectively, the Unlawful Discrimination Laws) including, relevantly, Part II of the Sex Discrimination Act in which ss 14, 21 and 22 appear. It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) and the Sex Discrimination Act: Picos v Australian Federal Police [2015] FCA 118 at [36]-[38] (Perry J) and the authorities cited therein; Picos v Servcorp Limited [2015] FCA 344 (Servcorp) at [46]-[49] (Perry J). As a result, a contravention of ss 14, 21 and 22 of the Sex Discrimination Act or the Disability Discrimination Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act: Bropho v State of Western Australia [2004] FCA 1209 at [29] and [51]-[53] (RD Nicholson J); French v Gray [2013] FCA 263; (2013) 217 FCR 404 at [149]-[151] (Besanko J); Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71] (the Court).

42    Section 46PO of Part IIB of the AHRC Act provides that if a complaint has been terminated by the President under, relevantly, s 46PH of the AHRC Act:

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

(Emphasis added.)

43    The term “respondent, in relation to a complaint” is defined in s 3 of the AHRC Act to mean “the person or persons against whom the complaint is made.” As such, on an ordinary reading of the provision, s 46PO makes no provision for an application to be made to this Court for unlawful discrimination against any respondents other than the respondents to the complaint terminated by the President: Servcorp at [5]-[6], [48]-[49] and [56] (Perry J).

44    This construction of s 46PO was adopted by the Full Court in Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 (Grigor-Scott). In that case, the respondent, Mr Jones, instituted a complaint of racial discrimination under Part IIB of the (then) Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC Act) (now titled the AHRC Act). However, the complaint did not nominate any person or entity as respondent (at [24]). On the President terminating the complaint, Mr Jones brought proceedings against the Bible Believers’ Church which had been referred to by the President as the respondent. However, while the Church was not a legal entity capable of being sued, orders were made joining the appellant, Mr Grigor-Scott, who was a Minister of the Church and had responded to the complaint in the Commission by making submissions for the Church.

45    The Full Court held that the Federal Court proceedings were incompetent because they had joined a non-existent entity not capable of being sued and, relevantly here, purported to join an individual who had not been a respondent to the complaint before the Human Rights and Equal Opportunity Commission (HREOC) contrary to s 46PO(1) of the HREOC Act. As to the latter, the Full Court held at 454 [18] that:

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. …

(Emphasis added.)

46    The Full Court then explained at 454 [19] that the intention in limiting 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:

…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).

47    As such, contrary to Mr Eliezer’s submission, the Full Court held that s 46PO(1) does limit the Court’s jurisdiction to entertain proceedings to those instituted against respondents only to the terminated complaint. It follows that it is not therefore correct to say that the identity of a respondent is a mere technicality with which the Court can dispense by reason of s 46PR of the AHRC Act.

48    Mr Eliezer contended in any event that the decision in Grigor-Scott was distinguishable because the complaint to HREOC had failed to nominate any respondent whereas in this case, the University had been expressly nominated as a respondent. However, while any judgment must be read in the light of its own particular facts, it is not sufficient to distinguish a case merely on the ground that the facts are different. The question is what is the ratio decidendi of the decision in Grigor-Scott which, being a decision of the Full Court, is binding upon me as a single judge. It is sufficient for present purposes to explain that the ratio is the reason or reasons which were treated by the judge as a necessary aspect of her or his decision, and not merely as a passing observation or link in the chain of reasoning (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at 248 [135] (Weinberg J)).

49    I have no doubt that the ratio in Grigor-Scott, insofar as the Full Court held the Court lacked jurisdiction despite the joinder of Mr Grigor-Scott, was that s 46PO(1) provided only for a statutory cause of action against any respondents to the terminated complaint and not, therefore, against Mr Grigor-Scott. Thus after reiterating at 465 [69] that s 46PO does not authorise an affected person to bring a proceeding against anyone other than a respondent to the terminated complaint, the Full Court held at 465-466 that:

70.    The primary judge made findings that Mr Grigor-Scott was responsible for publishing on the Website the material about which Mr Jones complained to the Commission. Those findings of the primary judge, to which Mr Jones referred in his written submissions cited above, were not challenged by Mr Grigor-Scott on the hearing of the appeal. Nevertheless, the President did not refer to Mr Grigor-Scott as the respondent.

71.    Section 46PO(1) authorises an application to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. The question is whether Mr Grigor-Scott can fairly be described as a respondent to the complaint that was terminated by the President by the notice of 9 February 2005. On a fair reading of the notice and the letter outlining the President’s reasons, it cannot be said that Mr Grigor-Scott was ever a respondent to the complaint. It may be that the complaint was never properly constituted. Be that as it may, the President quite clearly did not treat Mr Grigor-Scott as the respondent to the complaint. Rather, the President referred at all times to Bible Believers’ Church as the respondent.

(Bold emphasis added.)

50    The Full Court concluded at 467 that:

77.    … No party at any time prior to 21 July 2005 treated the complaint made to the Commission as a complaint against Mr Grigor-Scott. Mr Grigor-Scott was never a respondent to the complaint before the Commission.

78.    Since Mr Grigor-Scott was never a respondent to the complaint to the Commission, no proceeding could be brought against him by Mr Jones. That would be enough to dispose of this appeal.

(Emphasis added.)

51    Mr Eliezer also submitted that it sufficed if the second to fifth respondents were merely mentioned in the complaint to the Commission. However, the passage quoted above from the Full Court’s reasons in Grigor-Scott also makes it clear, in my view, that it is not sufficient that an individual is implicated in the conduct of which complaint is made to the Commission in order to establish that she or he is a respondent.

52    In the present case, it is clear that the only respondent to the complaint lodged with the Commission was the University. First, in answer to the question on the submission form given to the Commission of who the complaint is about and whether it is an individual or organisation, Mr Eliezer responded “Organisation The University of Sydney”. Further, in answer to the question of whether the complainant wanted to add another respondent, the answer given was “No”. Secondly, the letter dated 10 March 2014 from Mr Eliezer to the Commission on behalf of his wife set out the details of the complaint. In that letter, Mr Eliezer stated “The University of Sydney, Business School, Discipline of Accounting” in answer to the question of who she is complaining about. Thirdly, the Commission treated the complaint as only being made against the University. In particular, it identified the University as the sole respondent in the notice of termination of the complaint dated 28 August 2014 and in the letter enclosing the notice of termination sent to the University by the Commission on the same day.

53    It follows that the Court lacks jurisdiction to entertain the proceedings against the second to fifth respondents.

54    Nonetheless, Mrs Eliezer appears to contend that her application to amend the originating application so as to add further causes of action may “cure” the jurisdictional difficulties alleged by the respondents with respect to her claim against these respondents. Yet the proposal to expand the claim to include new claims, even assuming that they may be brought against the second to fifth respondents, would not cure the jurisdictional problems with respect to the claims made against them under the AHRC Act for alleged breaches of the Sex Discrimination Act. As such, I consider that, there being no jurisdiction to entertain the claims presently made against these respondents, the claims against them should be summarily dismissed. Those respondents should not be required to await the possibility that Mrs Eliezer may plead presently unidentified causes of action against one or more of them which may, in turn, attract the jurisdiction of the Court against one or more of them. That would require the Court to refuse to determine the respondents’ interlocutory application to this extent on a purely speculative basis.

55    Moreover, if, in referring to a possible claim for disability discrimination, Mrs Eliezer proposes to make a claim under the AHRC Act for an alleged contravention of the Disability Discrimination Act, it would be a necessary precondition to the making of such a claim that Mrs Eliezer have first lodged a complaint with the Commission against the respondents which has, in turn, been terminated: see at [41]-[50] above. No evidence has been led to suggest that any such claim has been made, let alone terminated. As such, there would be no jurisdiction at this stage to entertain any such claim in this proceedings or otherwise.

56    It follows that the application must be dismissed as against the second to fifth respondents on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding for the reason that the Court plainly lacks jurisdiction to entertain it as against these respondents.

4.3    The abuse of process issue

4.3.1    Relevant principles

57    It has been emphasised on many occasions that what constitutes an abuse of court process is insusceptible of a formulation comprised of closed categories: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos (HCA)) at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). As Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 75 (in a passage quoted with approval in Batistatos (HCA) at 266-267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ)):

Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.

58    Nonetheless, abuses of process usually fall into one of three established categories, namely, that the use of the court’s procedures is for an illegitimate purpose, is unjustifiably oppressive to one of the parties, or would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286 (McHugh J); Batistatos (HCA) at 267 [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Such abuses may arise from the institution of proceedings, although any procedural step is capable of being an abuse of court process: ibid. Moreover, where the proceedings are alleged to constitute an abuse of process on the ground of oppression, there is no requirement that the continuance of the action would involve moral delinquency on the plaintiff’s part. Rather, it is the objective effect of the continuation of the action which is decisive (Batistatos (HCA) at 281 [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ)).

59    In broad terms, the respondents contend that the institution of these proceedings is oppressive and an abuse of process in the circumstances having regard in particular to:

(a)    the prejudice to the respondents’ ability to have a fair trial by reason of the applicant’s delay, notwithstanding that that prejudice in terms of the loss of evidence and deterioration in the quality of evidence cannot be proved affirmatively; and

(b)    the prejudice to the respondents caused by apparent change in the applicant’s position from allegations in 2008 that her psychological injuries were caused by bullying and harassment in a general sense by the third respondent in the context of her workers compensation claim, on the one hand, and her position in these proceedings that the psychological injury suffered by her in 2008 was in fact caused by sex or pregnancy discrimination by the respondents, on the other hand.

60    Nonetheless, as the respondents accept, these proceedings are not statute barred. There is no limitations period within which a complaint must be made to the Commission. The question of delay in instituting a complaint to the Commission is dealt with by the conferral of a discretion under s 46PH(1)(b) of the AHRC Act on the President to terminate a complaint on the ground that it was lodged more than 12 months after the alleged unlawful discrimination took place, as occurred here. Prior to termination of the complaint, no cause of action arises under the AHRC Act: Baird v Queensland [2005] FCA 1516; (2005) 146 FCR 571 at 575 [7]-[9] (Dowsett J). Section 46PO(2), however, provides that “[t]he application must be made within 60 days after the date of issue of the notice [of termination of the complaint by the President] under subsection 46PH(2), or within such further time as the court concerned allows.” In the present case, these proceedings were instituted on 27 October 2014, being 60 days after the notice of termination issued on 28 August 2014 and therefore within the period prescribed by s 46PO(2) of the AHRC Act, as the respondents accepted.

61    However, this does not mean that the proceedings cannot constitute an abuse of process as the respondents correctly submit, and, in particular, that delay is not relevant to the question of abuse (Herron v McGregor (1986) 6 NSWLR 246 (Herron) at 253 (McHugh JA (with whose reasons the other members of the Court of Appeal agreed))). As the joint judgment held in Batistatos (HCA) at 280, after observing that it is unsatisfactory to speak of a plaintiff as having a legal right to commence proceedings within the applicable statutory limitation period:

63.    … The plaintiff certainly has a “right” to institute a proceeding. But the defendant also has “rights”. One is to plead in defence an available limitation defence. Another distinct “right” is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.

64.    It is a long, and impermissible, step to deny the existence of what may be the countervailing right of a defendant by imputation to the legislature of an intent, not manifested in the statutory text, to require the court to give absolute priority to the exercise by the plaintiff within the limitation period of the right to initiate proceedings. The truth is that limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term “delay”.

62    Thus, their Honours held, the “right” of a plaintiff to institute proceedings is subject to the operation of the applicable procedural and substantive law administered by the Court including the principles respecting abuse of process (Batistatos (HCA) at 280 [65] (Gleeson CJ, Gummow, Hayne and Crennan JJ)).

63    In so holding, their Honours approved the reasons of Bryson JA who had held in the New South Wales Court of Appeal that:

Delay is not what the [Limitation Act 1969 (NSW)] authorises, literally or in substance. It operates in quite another way, by preventing proceedings being brought after prescribed times, irrespective of whether or not the proceedings can be fairly adjudicated…. The [Limitation Act 1969 (NSW)] cannot in my view close the court’s eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis.

(Newcastle City Council v Batistatos [2005] NSWCA 20; (2005) 43 MVR 381 at 405-406 [80] (Bryson JA (with whom Mason P and Giles JA agreed) (approved in Batistatos (HCA) at 277-278 [54])).

64    In this regard, the prejudice caused by delay may be insidious and unable to be positively proved, as the respondents submit. As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) at 551:

For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532] “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

(See also Herron at 253 (McHugh JA)).

65    As McHugh J then continued at 552-553, with respect to the rationales underlying limitations periods:

First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.… The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

66    The same considerations, in my view, inform the concept of abuse of process when delay is relied upon.

4.3.2    Is the institution of the present proceedings oppressive and an abuse of process?

67    For the reasons given below, I agree with the respondents that it would be oppressive in all of the circumstances to allow these proceedings to go to trial. In reaching this view, the factors which have led me to this conclusion are:

(a)    the extent of the delay, not merely in making the complaint to the Commission but in the later notification to the respondents of her claims;

(b)    the prejudice caused to the respondents by reason of that delay, being a prejudice which is not met by the documentary evidence relating to the workers compensation claim contrary to the applicant’s submission;

(c)    the absence of any adequate explanation for the delay; and

(d)    the inconsistency in the position now adopted by the applicant as to the cause of her psychological injury, as opposed to that taken earlier by her in relation to her workers compensation claim to which the University responded in 2008.

4.3.2.1    Extent of Delay and Consequential Prejudice to the Respondents

68    First, the relevant conduct said to constitute unlawful sex or pregnancy discrimination occurred primarily in the period November 2007 to March 2008. Mrs Eliezer also contends that this conduct resulted in psychological injury in April 2008. Even the later allegations of unlawful discrimination in 2009, appear to be pleaded only as a continuation or perpetuation of the respondent’s conduct in that period as I have said. Yet the first time that any complaint of sex or pregnancy discrimination was made was when the applicant lodged her complaint with the Commission on 13 March 2014.

69    Furthermore, there is no challenge to the University’s evidence that it was not aware of the existence of any complaint by Mrs Eliezer alleging sex or pregnancy discrimination against it until May 2014 when Mr Eliezer sent a copy of the complaint to the Vice-Chancellor’s office, that is, more than six years after the alleged conduct occurred. There is no dispute that the University had a mechanism in place for staff, such as Mrs Eliezer, who wished to make a complaint about discrimination and harassment in the workplace, being the Harassment and Discrimination Prevention Policy and Resolution Procedure, and that no complaint was made by Mrs Eliezer pursuant to that policy. Nor is there any challenge to the evidence of the second to fifth respondents that they had no knowledge of any allegations by her of sex or pregnancy discrimination against the University or any of them until in or about November 2014 when they were given notice of the commencement of these proceedings. This was some seven years after the PhD review meeting when the sexual or pregnancy discrimination was said to have commenced. In this regard it will be recalled that the maximum limitation period prescribed by statute for instituting civil actions is six years (Herron at 257 (McHugh JA); Brisbane South at 551 (McHugh J)).

70    The seriousness of these delays point, as the respondents contend, to inevitable prejudice on their part in being able to defend these claims. Reference has already been made to the insidious and deleterious impact of time on the quality and availability of evidence (see above at [64]-[65]). The difficulties in ascertaining the truth where there has been delay can be further illustrated by the observations of Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983), endorsed by McHugh JA in Herron at 254, as follows:

In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.

71    It may be that the inconsistency in Mrs Eliezer’s claims today and those made in 2008 is explicable by reason of a subtle process of reconstruction of the kind to which Street CJ refers in this passage.

72    The University also pointed to prejudice if the matter were to proceed to trial by reason of the fact that the second and third respondents are no longer employed by the University. As the respondents further point out, additional difficulties are likely to be encountered in identifying and locating persons who may have witnessed interactions between the applicant and the second to fifth respondents.

4.3.2.2    The Prejudice to the Respondents is not met by the Documents

73    Secondly, Mrs Eliezer submits that any prejudice to the respondents is met by the fact that the case can be decided on the documentary evidence. Particular reliance is placed in this regard on the statements prepared in response to her claim for workers compensation and the medical reports which were generated in relation to that claim which are pleaded in the statement of claim.

74    The submission is, with respect, misconceived. However Mrs Eliezer might run her case, it is apparent that the University, which vigorously denies the allegations in the statement of claim, understandably submits that it could not defend the matter simply upon the basis of contemporaneous documents. By way of example, the statement of claim is replete with factual allegations as to the content of conversations, the making of allegedly demeaning and discriminatory comments to, and behaviour towards, Mrs Eliezer by the second to fifth respondents, alleged failures by the respondents to discuss the imposition of requirements with her before they were imposed, and the alleged falseness of statements said to have been made to her. As a further example, the claim also pleads that the respondents colluded to sabotage Mrs Eliezer’s post-maternity work performance. The determination of the claims of discrimination would also require evidence of treatment of an appropriate comparator as to such matters as workload, and the kinds of tasks undertaken, and practices existing in the University workplace at the relevant time. Furthermore, the University submits that in order to defend the claim, extensive cross-examination would be required not only of Mrs Eliezer, but the medical practitioners on whose reports she relies.

75    In addition, while the second and third respondents provided statements dated 31 July 2008 and 30 June 2008 respectively in relation to the workers compensation claim, together with a statement dated 25 June 2008 of Ms Paula Spicer, then HR Relationship Co-ordinator, Faculty of Economics and Business at the University of Sydney, the University’s evidence that no other University employees provided statements is uncontested. Moreover those statements which were provided were responsive to the claim then made of general bullying and harassment in the workplace by the third respondent only. They did not respond to the different claims now made.

76    Furthermore, none of the histories provided by the applicant to the medical experts dealing with her claim for workers compensation suggest that any mention was made of harassment or other misconduct by any of the respondents apart from the third respondent, and no mention is made of any sex or pregnancy discrimination. In particular:

(a)    Ms Louise Morrow, clinical psychologist, interviewed the applicant at her office on 19 June 2008. In her pre-liability psychological assessment report dated 30 June 2008 on which Mrs Eliezer relies at [54.2] of her statement of claim, Ms Morrow set out a the facts and events which Mrs Eliezer identified as contributing towards her submission of the workers compensation claim. That history records a very detailed account of specific allegations against the third respondent including as to the workload required of her by the third respondent and content of particular conversations but no reference to any conduct by any other respondents or, for example, to the PhD review meeting allegedly in November 2007. Nor is there any allegation of sex or pregnancy discrimination. Ms Morrow noted, in assessing the status of the reported workplace factors, that:

Ms. Eliezer attributed the development of her disorder to harassment by her manager Sharron O’Neill [the third respondent]. She stated that Ms. O’Neill constantly found fault with her work. She stated that she was stressed by an excessive administrative workload from November-January, which interfered with the time she had to undertake research. With regards to personal factors contributing to her current mood state Ms. Eliezer presented as a high achiever with a level of interpersonal anxiety as evidenced by her strong, almost excessive need for clarity regarding expectations. She appears acutely sensitive to the perceived judgement of others.

Ms Morrow concluded that the applicant suffered from a psychological injury and that the information provided for the assessment indicated that workplace contributing factors “pertained to performance issues.”

(b)    The report of Dr Ian Marshall, University Health Service, University of Sydney, to Dr Lydia Bennett dated 4 June 2008 recorded that the applicant “has become quite severely depressed and anxious following persitent [sic] difficulties, unrealistic demands and conflict with her supervisor at work. She is now unable to attend work. Her situation has been accepted provisionally under Workers Compensation.” In her report dated 30 June 2008, Ms Morrow refers to statements to her from Dr Marshall to similar effect on which Mrs Eliezer relies at [54.3] of her statement of claim.

(c)    The report of the clinical psychologist, Dr Lydia Bennett, on which the applicant relies at [54.4] of her statement of claim, makes no mention of any claim made by Mrs Eliezer of sex or pregnancy discrimination. Her history given at the time of initial consultation is that a difference took place in Mrs Eliezer’s workplace from November 2007 as a result of responsibilities given to her by her new supervisor, the third respondent. Without derogating from the seriousness of the allegations made, Dr Bennett reports only that “Ms Eliezer described a series of situations and events that indicated that she had been treated unfairly, unprofessionally and abusively at work”. While Dr Bennett describes Mrs Eliezer’s recollection of events as consisting of “numerous accounts of abuse and harassment”, no mention is made of any harassment or discrimination on the ground of sex or pregnancy or by any other person.

4.3.2.3    No Adequate Explanation for the Delay

77    In the third place, no direct evidence is given by Mrs Eliezer as to why she delayed so long in instituting these proceedings or, indeed, in making any allegations of sex or pregnancy discrimination against the respondents prior to the complaint to the Commission.

78    Mrs Eliezer submits that there is evidence explaining the delay, inviting the Court to infer from the medical reports in relation to her workers compensation claim that the reason for the delay was the psychological injury to which those reports attest. While accepting for present purposes that she suffered from a psychological injury as a consequence of harassment and bullying at work, I do not accept that the inference for which Mrs Eliezer contends should be drawn. Her submission fails to explain the absence of any direct evidence on the point. It does not explain why, as the medical reports and documents in relation to the workers compensation claim reveal, no complaint was made of sex or pregnancy discrimination to the medical practitioners or otherwise, but only generally of harassment and bullying, and by only one of the respondents to the claim. Nor does it explain why she was able to make a claim for workers compensation but apparently unable in any way, even by letter, to notify the University of her claims to have been subjected to sex or pregnancy discrimination. It does not explain why Mr Eliezer could not have made any claim on his wife’s behalf, as indeed he ultimately did in making the complaint to the Commission and in making submissions on her behalf in these proceedings.

79    In short, the medical evidence in support of Mrs Eliezer’s workers compensation claim does not provide an adequate basis on which to infer that the reason for the significant delay by the applicant in making the allegations the subject of these proceedings, let alone in instituting these proceedings, was her psychological injury. Indeed, as the respondents submit, the medical certificates given by Dr Marshall suggest the contrary. In his certificate dated 12 February 2009, Dr Marshall certified that Mrs Eliezer was fit for research work only for a period of 4 hours a day for 2 days per week from 1 to 28 February 2009. Subsequently, in his certificate dated 27 February 2009, Dr Marshall certified that Mrs Eliezer was fit for work generally at 3 hours a day for 3 days per week from 27 February to 10 April 2009. No issue was taken with this evidence.

4.3.2.4    The Applicant’s Inconsistent Claims

80    Finally, in support of the contention that the proceedings are an abuse of process the respondents rely also upon the inconsistency between the claims made here that Mrs Eliezer’s injury was caused by discrimination on the basis of sex or pregnancy by all respondents, on the one hand, and her claim in the context of her workers compensation claim that the cause was general harassment and bullying by the third respondent only, on the other hand. While accepting that the doctrine of approbation and reprobation, which is closely related to election and sometimes treated as a species of it, may not neatly apply between the pursuit of workers compensation proceedings and proceedings under the AHRC Act, the respondents submit that a valid analogy can be drawn with the applicant’s position. That doctrine means that “a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course”: Halsbury’s Laws of Australia, Vol 190 [190-35] (approved in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 at [109] (McLure JA (Buss JA and Murray AJA agreeing)) (reversed in part by Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409, on grounds not relevant here); see also Fried v National Australia Bank Ltd [2000] FCA 910 at [30]-[33] (Weinberg J) and Bristol-Myers Squibb Company v Apotex Pty Ltd [2015] FCAFC 2; (2015) 228 FCR 1 at 29 [84]-[85] (the Court)). In this case, I accept the respondents’ contention that Mrs Eliezer’s inconsistent position has caused them irremediable prejudice. As the respondents submitted:

…none of the evidence that was gathered in relation to the events over 6 years ago related in any way to the specific allegations of sex or pregnancy discrimination that are now made. Further, it is now frankly impossible for the Respondents to travel back in time to test the medical and other evidence as to the alleged cause of the injury. For example, it may be potentially impossible, or an exercise in futility, for the Respondents to seek to have the Applicant examined by an independent medical expert to determine the cause of a psychological injury that occurred between 6 to 7 years ago. That is all the more so when the medical evidence from that time was based on a specific history given by the Applicant, which has now markedly changed.

81    In effect, such evidence as was gathered by the University in 2008 in the context of the workers compensation claim addressed different claims from those now made, thereby causing irremediable prejudice to the respondents. The point can be illustrated by the prejudice plainly suffered by the respondents in being able today to test the medical experts as to the inconsistent history given to them by Mrs Eliezer in 2008.

82    In this regard, it is not to the point that Mrs Eliezer may have some claim other than the claim for psychological injury such as for an apology, or that her damages claim may have other components. The point remains that she now contends that sex and pregnancy discrimination by all respondents caused her psychological injury; yet this was not identified as a cause when the workers compensation claim was made. In other words, initially Mrs Eliezer complained of one kind of adverse conduct which was the subject of inquiry and consideration in 2008 by the University but now says that the adverse conduct was in fact of a different nature and engaged in by all of the respondents. That inconsistency in her position remains, as does the prejudice to the respondents in testing those new claims, irrespective of whether or not she ultimately pursues the claim for damages for personal injury.

5.    THE APPLICATION TO AMEND THE APPLICATION

83    Mrs Eliezer submits that she has “a statutory right under [sic] s 8.21(1)(g)(i) of the Federal Court Rules 2011, to seek to amend her application” to apply for relief in relation to the alleged associated claims. Rule 8.21(1)(g) of the FCR provides that:

An applicant may apply to the Court for leave to amend an originating application for any reason, including:

…

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

84    As is apparent from its terms, r 8.21 is facilitative, permitting an applicant to apply to amend an originating application. Whether or not the Court permits an applicant to amend the originating application will turn upon the exercise of discretion. It does not confer a right to amend even though the purpose of the rule being to enable the real questions in controversy between the parties to be decided and avoid a multiplicity of proceedings, is relevant.

85    I have already refused the application for leave to amend the originating application insofar as it relates to the second to fifth respondents: see above at [54]-[56]. Each of the possible additional causes of action to which Mrs Eliezer referred – disability discrimination, breach of contract, and breaches of the Work Health and Safety Act 2011 (NSW) - are based on the same alleged conduct as that presently said to establish a breach of the Sex Discrimination Act. As such, I can see no reason why it would not equally constitute an abuse of process by reason of her delay, her failure to provide any adequate explanation for the delay and the prejudicial impact on the respondents.

86    In the case of the proposal (if it goes so far) to plead a breach of the Disability Discrimination Act, it suffers from two further difficulties. First, as in the case of the sex and pregnancy discrimination claim, the claim that injury was suffered by reason of disability discrimination is inconsistent with the basis on which the claim for workers compensation was put: see above at [80]-[82]. Secondly, there is no evidence to suggest that the preconditions to the making of such a claim in the Court have been met: see above at [41].

6.    CONCLUSION

87    Mrs Eliezer’s application for leave to amend the originating application is dismissed with costs. The proceedings are summarily dismissed under s 31A(2) of the FCA Act and r 26.01 of the FCR with costs.

Associate:

Dated:    21 September 2015