FEDERAL COURT OF AUSTRALIA

Payne v Davies [2019] FCA 1506

ORDERS

THE COURT ORDERS THAT:

1.    The application is summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant is to pay the respondents’ costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This proceeding was instituted following the termination by the Australian Human Rights Commission (the Commission) of a complaint by the applicant, Mrs Tracey Payne, against relevantly the first and second respondents, Ms Ann-Maree Davies and Ms Davies’ employer, Sureway Employment and Training Pty Ltd (Sureway), respectively. The two other respondents to the complaint before the Commission, namely the Technical and Further Education Commission trading as “TAFE NSW – Riverina Institute” (TAFE NSW), and its employee, Mr Long, are not parties to this proceeding. In her complaint to the Commission, Mrs Payne alleged that Ms Davies of Sureway told her that she could not participate in a Cert III Civil Construction and Plant Operations course offered by TAFE NSW at the TAFE Riverina Institute because she was “not aboriginal”. Mrs Payne alleged that this conduct was unlawful under the Racial Discrimination Act 1975 (Cth) (RDA).

2    By her originating application filed in the Federal Court under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the applicant claims that she has been subjected to discrimination which is unlawful under ss 9, 13, 18A and 27 of the RDA. She seeks by way of relief, an apology, disciplinary action, and monetary compensation.

3    By an application filed on 19 February 2018, the respondents seek an order for summary dismissal of the originating application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rule 26.01(1)(a) or (c) of the Federal Court Rules 2011 (Cth) (FCR). Following the filing of that application, the matter required a relatively high degree of case management and was initially to be heard before the trial of a related application by the applicant’s husband, Mr Carl Payne, in a separate proceeding.

4    Leave was granted for Mrs Payne’s husband to attend the hearing of the application for summary dismissal in the capacity of a McKenzie friend for the purpose of assisting Mrs Payne and making submissions on her behalf, with Mrs Payne advising the Court if anything was said with which she did not agree or if she wished to supplement those submissions orally.

5    For the reasons set out below, the application by Mrs Payne has no reasonable prospects of success and must be dismissed under s 31A(2) of the FCA Act and r 26.01 of the FCR.

2.    EVIDENCE

6    The respondents’ application for summary dismissal is supported by the affidavits of Andrew Finlay Yahl, solicitor, affirmed on 19 February 2018 (Mr Yahl’s first affidavit) and on 2 March 2018 (Mr Yahl’s supplementary affidavit). The supplementary affidavit is intended only to correct a matter to which Mr Yahl had deposed in his first affidavit, namely, that his understanding was that the originating application had not attached a copy of the complaint to the Commission. The respondents also relied upon a bundle of documents filed after the hearing by them with leave of the Court which was directed to the issue of identifying the complaint as accepted and terminated by the Commission (the respondents’ complaint bundle). I consider this issue at [9]-[13] below.

7    The applicant relied upon her statement of evidence filed on 11 December 2017 and a bundle of documents in response to those filed by the respondents as to the alleged complaint filed on 10 May 2018 (the applicant’s complaint bundle).

8    The applicant also made reference in her post-hearing submissions filed on 1 November 2018 to evidence filed in the proceedings No. ACD 47 of 2017 instituted by her husband, Carl Payne, to which the respondents are Ian Long and Technical and Further Education Commission trading as TAFE (NSW). However, I have not taken any evidence in Mr Payne’s proceeding into account because the respondents to this proceeding are not privy to the evidence in the other proceeding and the Court may have regard only to evidence tendered, and other documents filed in, the present proceeding.

3.    A PRELIMINARY ISSUE: IDENTIFICATION OF THE COMPLAINT AS ACCEPTED AND TERMINATED BY THE COMMISSION

9    A preliminary issue arose between the parties as to whether the complaint as accepted and terminated by the Commission comprised:

(1)    the complaint form dated 15 November 2016 which was emailed to the AHRC on 22 November 2016, as alleged by the applicant; or

(2)    the complaint form dated 12 November 2016 and the applicant’s letter dated 19 November 2016, as alleged by the respondents.

10    Importantly, the complaint form dated 15 November 2016 on which the applicant seeks to rely alleges that Sureway victimised her (see annexure AFY-2 to Mr Yahl’s supplementary affidavit at p 19). However, neither Sureway or Ms Davies were named as respondents in the complaint form dated 12 November 2016 and no allegation of victimisation was made against either of them when the complaint was amended to include the applicant’s letter dated 19 November 2016 and they were joined as respondents. As a result, Sureway and Ms Davies contend that the applicant’s claim of victimisation in this proceeding has no reasonable prospects of success on the ground that the Court lacks jurisdiction to consider that claim because it was not part of the applicant’s complaint as accepted and terminated by the Commission (see further below).

11    As earlier mentioned and pursuant to leave granted on 10 October 2018, the respondent filed a chronology on 17 October 2018 which attached the respondents’ complaint bundle in support of their position as set out in supplementary submissions, while the applicant filed further submissions in response, to which she attached her complaint bundle of documents, on 1 November 2018. I have received both of these bundles in evidence on the application for summary dismissal.

12    The respondents’ view as to the relevant complaint is consistent with all of the evidence filed, including that filed by the applicant. Specifically:

(1)    The Commission wrote to the applicant on 22 December 2016 stating that it had not accepted her complaint form dated 15 November 2016 which named Sureway, the Department of Human Services, and three individuals (but not Ms Davies) “as it is not clear how the issues you raise could be covered under the federal anti-discrimination law administered by the Commission” (respondents’ complaint bundle at pp. 36-37; see also the letter from the Commission to the applicant dated 17 May 2018 at Attachment “R7” to the applicant’s submissions filed on 1 November 2018).

(2)    When the Commission wrote to Sureway notifying it of the complaint by the applicant, the Commission referred to the complaint as comprising “a complaint form dated 12 November 2016 and her letter dated 19 November 2016” (respondents’ complaint bundle at p. 39).

(3)    While the Commission referred in its Notice of Termination to the complaint “received on 22 November 2016” (respondents’ complaint bundle at p. 3), it also referred to the complaint in question being that provided at Attachment B. The complaint provided at Attachment B in turn was the complaint form dated 12 November 2016 together with the letter from Mrs Payne to the Commission dated 19 November 2016.

(4)    Consistently with this, the Commission’s reasons make no reference to any complaint of victimisation against Sureway or Ms Davies, and describe the complaint against them as alleging racial discrimination under the RDA only (respondents’ complaint bundle at p. 5).

(5)    By a letter from the Commission to the applicant dated 17 May 2018, the Commission explained that “… the Notice of Termination and Attachment A incorrectly state that your complaint was received on 22 November 2016. The correct date that your complaint was received by the Commission was 12 November 2016 … I apologise for the typographical error” (Attachment “R7” to the applicant’s submissions filed on 1 November 2018).

13    It follows that the applicant’s assertion that the complaint comprises the complaint form dated 15 November 2016 is contradicted by all of the available evidence.

4.    BACKGROUND

4.1    The applicant’s complaint to the Commission

14    It is convenient to refer to the complaint form received by the Commission on 12 November 2016 as the original complaint. In her original complaint against TAFE NSW and Mr Long, the applicant raised concerns about the enrolment requirements for a Cert III Civil Construction and Plant Operations course (the Course) offered by TAFE NSW at TAFE Riverina Institute. The allegations made by the applicant in her original complaint can be summarised as follows.

(1)    On 7 June 2016 she attended the TAFE Riverina Institute with her husband as he was attending the Course and she wanted to provide him with support because he suffered from dyslexia.

(2)    As Sureway, who was her job service provider, was located there, she also intended to inquire about the Course with Sureway “with the intentions of applying and asking about the course.” She further explained that “… as my Husband and I had previously discussed the day prior that we would try and look at getting these certificates and experience to help us and enable us to start our own small business, as the local rural community has very little employment opportunities and there was an opportunity for us to purchase a truck, which we did so recently.”

(3)    However, the applicant said that “[b]efore I had had a chance to mentiion this to [Ms Davies] she asked myself if I was aboriginal with that I replied No she then said that that’s a shame because you could have done the course to” (errors in original).

(4)    As a result, she was “shocked, offended and insulted”, as well as “concerned and terrified” that her husband would find out that “the course was for aboriginals only” given the social and economic disadvantages from which he had suffered throughout the course of his life.

(5)    The applicant also said that she saw no women enrolled in the course but only men. As a consequence she inferred that the course was available only to Aboriginal men and therefore “it was not only my race but also because I am female. The decision in which was made to impose or propose to impose terms or conditions for the course I believe that that decision was based on race and misogyny”.

(6)    In Mrs Payne’s email dated 19 November 2016, Mrs Payne stated that “[w]hen I went to the course and on speaking with Ann-Marie Daru from Sureway she stated to me that it was for aboriginals only.” She claimed that this amounted to less favourable treatment based on her race. She also claimed discrimination on the basis of her sex.

15    The original complaint against TAFE NSW was accepted by the Commission as a complaint of racial and sex discrimination under the RDA and Sex Discrimination Act 1984 (Cth) (respondents’ complaint bundle at p. 37). The Commission in its letter to the applicant dated 22 December 2016 stated that “[b]ased on the information available before the Commission at this stage, your claims as it relates to Mr Long are unclear” and accordingly, the complaint was not accepted against Mr Long at that stage (respondents’ complaint bundle at p. 36).

16    In an email dated 9 January 2017, Mrs Payne sought leave to amend the complaint to add Sureway and Ms Davies as additional respondents to the complaint alleging racial discrimination (Attachment C to the Termination Notice). Leave was granted by the Commission on 8 February 2017 to add Sureway and Ms Davies as additional respondents to the complaint in accordance with ss 46PA and 46PF(3) of the AHRC Act (the amended complaint). A copy of the amended complaint was sent to Sureway on 10 February 2017 and the Commission received a reply from Sureway and Ms Davies on 13 March 2017 which was provided to Mrs Payne on 20 March 2017.

17    Subsequently leave was granted to amend the complaint to add Mr Long as an additional respondent, and to include allegations of victimisation against TAFE NSW as outlined in a letter dated 15 February 2017 from the applicant (the further amended complaint). With respect to the latter, Mrs Payne claimed that she had been victimised by the following conduct:

(1)    in its response to the complaint to the Commission, TAFE NSW attempted to persuade or coerce the Commission into believing the law is interpreted in a different way to any other reasonable person;

(2)    TAFE NSW’s submission contained omissions and contradictions; and

(3)    TAFE NSW’s submission has shown no remorse, has acted with belligerence, and has further humiliated, offended, insulted and angered her.

18    Mrs Payne provided additional information on 13 June 2017 to the Commission pursuant to an invitation from the Commission by letter dated 30 May 2017.

4.2    Termination of the complaint on 5 July 2017

19    By a letter dated 5 July 2017, the Commission wrote to Mrs Payne to advise her that her complaint with the Commission had been terminated. Reasons were provided in the same letter.

20    First, the Commission noted that Mrs Payne alleged racial discrimination against TAFE NSW, Sureway, Ms Davies and Mr Long. The Commission found that despite conciliation discussions, the parties were unable to agree on how to resolve the complaint with respect to racial discrimination. For this reason, the Commission decided to terminate the complaint of racial discrimination under s 46PH(1)(i) of the AHRC Act as it was satisfied that there is no reasonable prospect of the matter being settled by conciliation.

21    Secondly, the Commission decided to terminate the complaint insofar as it alleged sex discrimination against TAFE NSW in the areas of education and the provision of goods, services, and facilities under s 46PH(1)(c) on the ground that it was satisfied that the complaint was lacking in substance.

22    Thirdly, the Commission decided to terminate the aspect of the complaint alleging victimisation against TAFE NSW under s 46PH(1)(c) of the AHRC Act on the ground that it was satisfied that the complaint was misconceived and/or lacking in substance. It found that overall, there was insufficient information to support the claims of victimisation under the RDA and/or the Sex Discrimination Act 1984 (Cth).

4.3    The issues raised by the applicant’s application for relief in this Court

23    The present proceedings were commenced by an originating application filed on 7 September 2017. As noted, only two of the respondents to the complaint in the Commission were joined as respondents in the present proceedings.

24    In her originating application, the applicant does not set out the conduct said to amount to unlawful discrimination. However, Form 116 (which is the relevant form prescribed by rule 34.163 of the FCR) drew the applicant’s attention to the fact that “[t]he unlawful discrimination must: (a) be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission; or (b) arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.”

25    In her originating application, the applicant alleges that the discrimination complained of is unlawful under ss 9, 13, 18A and 27 of the RDA. The relief sought is identified as follows:

The Applicant asks the Court for a public apology, disciplinary action, and monetary compensation.

$265,000, expected earnings $65,000 P/A, humiliation, psychological, emotional and mental stress, victimization, hurt, embarrassment, being shunned, and the respondents belligerence and lack of any remorse $200,000.

(quoted without alteration)

26    The conduct said to have breached these provisions is described in the applicant’s statement of evidence (at p. 1) as follows:

TAFE Western brought a Cert III Civil Construction and Plant Operations Course to Lake Cargelligo for the unemployed residents I was asked by my case Manager Ms Ann-Maree Davies (from Sureway Employment and Training Pty.) on the 7th June, 2016 are you aboriginal? And when I stated “No I am not” she replied with then you cannot do the course because you are not aboriginal. I was offended, humiliated and also very concerned by this remark[.]

(errors in original)

27    Based upon the applicant’s statement of evidence, the complaint to the Commission, and the originating application, the respondents submitted that they understand that these proceedings concern the allegation that Sureway through its employee, Ms Davies, engaged in unlawful discrimination on the ground of race in the provision of services by denying Mrs Payne access to the course offered by TAFE Western (the race discrimination complaint). I agree with this characterisation of the claims which accords also with the Commission’s characterisation of the complaint to it against these parties. The originating application and applicant’s statement of evidence also indicate, as the respondents submit, that the applicant seeks to make a further allegation that she was victimised for making the AHRC complaint in contravention of section 27 of the RDA by the alleged conduct of Ms Davies in allegedly “making false, misleading and deceptive allegations and documenting them on the Sureway Employment and Training Pty. data base system as well as on the Government’s IT System” (the victimisation complaint).

5.    THE STEPS TAKEN IN THE LITIGATION TO DATE

28    The primary steps taken to date in the proceedings can be summarised as follows.

(1)    On 20 October 2017, Jagot J made directions setting a timetable within which the applicant was to file and serve “all material on which she intends to rely”, the respondents are to file a statement of facts and contentions and “all evidence upon which they intend to rely”, and the applicant is to file and serve any material in reply. Orders were also made for case management at the conclusion of that timetable on 9 February 2018. No directions were made requiring the applicant to file a statement of claim.

(2)    On 11 December 2017, Mrs Payne filed and served a document entitled “Statement of evidence of Mrs Tracey Payne” attaching 12 exhibits (see exhibit AFY-1 to Mr Yahl’s first affidavit) including a statutory declaration (exhibit AFY-1 at pp. 144-145).

(3)    At the case management hearing on 9 February 2018, further timetabling orders were made which provided for the filing and service of an interlocutory application for summary dismissal by 19 February 2018.

(4)    On 19 February 2018, the respondents filed the summary dismissal application and Mr Yahl’s first affidavit in support of that application. The supplementary affidavit of Mr Yahl earlier referred to was filed on 2 March 2018.

(5)    Submissions on the summary dismissal application have been exchanged, including the post-hearing submissions and materials earlier referred to.

6.    CONSIDERATION

6.1    Principles governing a summary dismissal application

29    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.

30    The test for summary dismissal laid down by r 26.01(a) of the FCR (“no reasonable prospects of success”) is the same test for summary dismissal as that in s 31A of the FCA Act: Shammas v Canberra Institute of Technology [2014] FCA 71 at [13], [51] (Foster J). Rule 26.01(c) also provides for a matter to be summarily dismissed where no reasonable cause of action is disclosed.

31    The principles governing the application of s 31A are well established and were summarised recently in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] as follows:

(1)    The respondent as the moving party bears 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).

(2)    With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

… 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 long-standing 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.

(3)    Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4)    An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves 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 [28] (the Court).

(5)    Consistently with this, Reeves J in Cassimatis explained at [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.

(6)    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 fanciful, trifling, 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.

32    I note that at the hearing, Mrs Payne made submissions as to the circumstances in which a matter could be summarily dismissed, emphasising in particular the caution which should be exercised by the court before taking such a serious step. As Mrs Payne rightly submitted, it is not necessarily enough that the claim may be poorly drafted as a deficiency of that nature may be met by the grant of leave to amend.

33    It also follows, as I explained at the hearing, that at this stage, it is not for the Court to resolve disputed issues of fact. For example, Ms Davies in the joint submissions for the respondents denies the words attributed to her by Mrs Payne. However, it is not open to the Court on the summary dismissal application to determine whether or not to believe Mrs Payne or Ms Davies as to what was or was not said. Rather, the available materials must be considered in order to determine whether there is any real question of law or fact to be determined by the Court.

34    Consistently with these principles, the respondents accepted that the onus of persuading the Court that there was no reasonable prospect of success lay with the respondents. The respondents also accepted that even though the applicant’s evidence in chief has been filed, (annexed also to Mr Yahl’s first affidavit at pp. 82 et seq), the Court must still exercise caution and that if contested factual matters are raised, the Court has to take the evidence at its highest. However, the respondents submitted that even if Mrs Payne’s evidence is taken at its highest, the claims have no reasonable prospects of success.

6.2    The statutory regime for racial discrimination claims under the AHRC Act

35    The complaint was determined by the AHRC under the AHRC Act as in force prior to 13 April 2017.

36    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” (as defined in s 3(1) of the AHRC Act) under various Commonwealth anti-discrimination laws, including, relevantly, Parts II and IIA of the RDA in which ss 9, 13 and 18A appear and conduct that is an offence under s 27(2) of the RDA: see s 46P(1), AHRC Act.

37    Section 9 of the RDA provides that “[i]t is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.” However, the pivotal provisions relied upon by the applicant which go to the heart of her complaint are ss 13 and 27(2). Section 13 relevantly provides that it is unlawful for a person who supplies services to the public (or to any section of the public) to refuse to supply those services to another person, or to do so only on less favourable terms, by reason of the race of that other person. Section 27 in turn, which appears in Part IV of the Act concerning “Offences” provides that:

(2)    A person shall not:

(a)    refuse to employ another person; or

(b)    dismiss, or threaten to dismiss, another person from the other person’s employment; or

(c)    prejudice, or threaten to prejudice, another person in the other person’s employment; or

(d)    intimidate or coerce, or impose any pecuniary or other penalty upon, another person;

by reason that the other person:

(e)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(f)    has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

(g)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.

38    Section 18A provides that employers are vicariously liable for acts done by their employees in connection with their duties of employment that are unlawful under Part II, save where the employer took all reasonable steps to prevent the employee from doing the act. The applicant relies upon s 18A to “sheet home” liability to Sureway for Ms Davies’ conduct.

39    It is well established that the regime established by the AHRC Act is an exclusive one for remedying contraventions of the various Commonwealth discrimination laws, which include the RDA: see e.g. Picos v Australian Federal Police [2015] FCA 118 at [36]-[38] (Perry J) and Picos v Servcorp Limited (No 2) [2015] FCA 343; (2015) 236 FCR 141 at [18] (Perry J). As a result, a contravention of (relevantly) Part II and s 27(2) of the RDA gives rise to a right only to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act: Bropho v 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).

40    Relevantly, Part IIB of the AHRC Act prescribes a number of steps as follows.

(1)    Section 46P of the Act provides that a written complaint may be lodged by a person aggrieved with the AHRC alleging “unlawful discrimination” as defined in s 3(1).

(2)    A complaint under s 46P must be referred to the President of the AHRC (s 46PD).

(3)    The President must then inquire into the complaint and attempt to conciliate it (subs 46PF(1)).

(4)    The President may terminate a complaint on a number of grounds including that the President is satisfied that: the alleged unlawful discrimination is not unlawful discrimination; the complaint was trivial, vexatious, misconceived or lacking in substance; or there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1)(a), (c) and (i) respectively).

(5)    Relevantly, where a complaint is terminated under s 46PH and the President has given notice of the termination, an affected person in relation to the complaint may apply under s 46PO(1) within 60 days to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint subject, importantly, to s 46PO(3).

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

41    With respect to point (5) above, s 46PO(3) provides that:

(3)    The unlawful discrimination alleged in the application:

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

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

42    The Full Court considered the purpose and effect of s 46PO(3) in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye), explaining that:

46. … s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [v State of New South Wales] [2000] FCA 1565 at [8].

43    As the Full Court then continued, “the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination” (Dye at [47] (the Court)). In this regard, while different facts may be alleged by an applicant in proceedings in the Court from those alleged in the terminated complaint, those new facts must not differ in substance from those formerly alleged (Dye at [47]). Furthermore, the terms of a complaint made to the Commission should not be read subject to the same strictures as apply to a pleading in a court, given that s 46PR of the AHRC Act requires that the Court is “not bound by technicalities or legal forms”. Nonetheless, s 46PR does not detract from the proposition that the “substantive directions” given by s 46PO(3) must be respected (Dye at [48] (quoting Maghiar v Western Australia [2002] FCA 262 at [18] (French J)).

6.3    The Court has no jurisdiction to entertain the claim that Sureway victimised the applicant

44    The applicant alleges that she was “victimized” contrary to s 27 of the RDA for making the complaint to the Commission by the alleged conduct of Ms Davies in “making false, misleading and deceptive allegations and documenting them on the Sureway Employment and Training Pty. data base system as well as on the Government’s IT System”. The entries in question were made on 18 January 2017 and 3 February 2017 and in her statement, the applicant says that she was unaware of the entries until she received from the Commission the statutory declaration from Ms Davies and Sureway’s submission. The documents disclose that that could not have occurred until, at the earliest, 13 March 2017.

45    As the applicant was neither employed by Sureway or applying for a position of employment with Sureway, plainly s 27(2)(a), (b) and (c) could not be relevant. Rather, the allegation appears to be that Sureway intimidated, coerced, or imposed a pecuniary or other penalty upon, the applicant within the meaning of s 27(2)(d) for making the complaint to the Commission.

46    Insofar as the applicant seeks relief based upon this allegation, the claim has no reasonable prospects of success. While the evidence would seem to fall far short of indicating any arguable case of victimisation, the claim must fail on jurisdictional grounds.

47    First, for the reasons earlier explained, all of the available evidence, including that of the applicant, unequivocally supports the respondents’ contention that the complaint accepted and terminated by the Commission was comprised of the complaint form dated 12 November 2016 and the applicant’s letter dated 19 November 2016. Importantly in this regard, the proceeding has reached the stage where the applicant has filed and served all of her evidence in line with the orders of Jagot J (see above at [28](1) and (2)).

48    Secondly, the allegations of victimisation are new. They manifestly do not resemble the allegations made in the terminated complaint. Nor can it be said that they arise out of the same, or substantially the same, acts which were the subject of the terminated complaint. It follows that the preconditions to the Court’s jurisdiction in s 46PO(3) of the AHRC Act to entertain the alleged contravention of s 27 of the RDA are not met. In other words, this Court simply lacks jurisdiction to entertain these allegations.

6.4    Race Discrimination claim

49    Section 13 of the RDA provides that:

It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a)    to refuse or fail on demand to supply those goods or services to another person; or

(b)    to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

50    Mrs Payne’s description of Ms Davies as her “job search provider case manager” in her original complaint is uncontentious, as is Ms Davies’ status as an employee of Sureway. The services supplied by Sureway were explained in the letter from Sureway to the Commission in its response to the applicant’s complaint. I note that it was not in issue that this was erroneously dated 18 September 2015 instead of 13 March 2017 (Mr Yahl’s first affidavit at [9] and exhibit AFY-1 thereto at p. 27; see also the applicant’s statement of evidence at p. 2). A copy of that letter is reproduced as annexure TP-04 to the applicant’s statement of evidence. Relevantly, in the letter Sureway explained that:

Sureway Employment and Training Pty Ltd is a jobactive, Disability Employment Services – Employment Support Services, Disability Employment Services – Disability Management Services and Work for the Dole Coordinator. Under contracts with the Department of Employment and the Department of Social Services, Sureway supports people (of diverse cultural backgrounds), including those with a disability or permanent medical condition, to find and maintain suitable employment.

Sureway works with Participants to build their skills and address vocational and non-vocational barriers to employment. Sureway also assess skills, experience and interests, as well as the impact of the participant’s medical condition(s) on their ability to find employment options with which they can continue in the long term. Sureway is able to provide internal training, access nationally accredited training organisations and community services to determine from these assessments a pathway to employment.

(See also the certificates of registration for the provision of various services issued to Sureway (exhibit AFY-1 to Mr Yahl’s first affidavit at pp. 33-51))

51    There is nothing to suggest that this description is contentious. To the contrary the applicant submitted in her response to the interlocutory application for summary dismissal at [9] that:

… it is public knowledge and by their own literature TAFE NSW provides a service. Furthermore, Sureway Employment and Training Pty. Ltd. by their own literature, public knowledge and further they hold Government Contracts to supply unemployed persons with a whole range of services.

…

(b) Sureway Employment and Training Pty. Ltd. hold Government Contracts and are part of Jobactive which gives them responsibilities and obligations to provide their clients with a whole range of services such as; providing them with access to courses provided by accredited training providers, helping with resumes, referring clients for job interviews, assisting them with financial support through various grants for clothing, transport, material to any employment the client may gain either through their own means or through Sureway Employment and Training Pty. Ltd., helping through personal problems that may hinder clients from gaining employment etc.

52    As such, Mrs Payne correctly submitted (and the respondents accepted) that Sureway, through Ms Davies as its employee, provided a service to Mrs Payne and other members of the public who were clients. All of the available evidence is to the effect that that service was to assist Mrs Payne and other clients with finding gainful employment through among other things the provision of advice and assistance in accessing accredited training organisations.

53    However, the complaint by Mrs Payne is that Ms Davies and, by virtue of s 18A, Sureway as her employer, engaged in unlawful discrimination contrary to s 13 of the RDA in the provision of services by denying her access to the Course. As such, the “service” for the purposes of s 13 of the RDA is the provision of the Course. Yet, despite the applicant having filed the material on which she would seek to rely at trial in compliance with the orders made by Jagot J, there is no evidence to suggest that Sureway or Ms Davies provided the Course, were in a position to refuse, or to fail, to supply the Course, or had any involvement in, or control over, the eligibility criteria. To the contrary, in her statement of evidence at p. 1, the applicant acknowledges that “TAFE Western brought a Cert III Civil Construction and Plant Operations Course to Lake Cargelligo for the unemployed residents” (reproduced also in exhibit AFY-1 to Mr Yahl’s first affidavit at p. 82). Furthermore, in the transcript of the telephone conversation between Mr Payne and Mr Long of TAFE NSW which is exhibit TP-06 to the applicant’s statement of evidence, Mr Long referred to the course being “run” by TAFE NSW “for the aboriginal community ‘cause we got money from the government to actually be able to fund these students to go through the course” (reproduced also in exhibit AFY-1 to Mr Yahl’s first affidavit at pp. 119-120).

54    That evidence in turn is consistent with the email correspondence between Ms Davies and Mr Long on 10 August 2016 (exhibit AFY-1 to Mr Yahl’s first affidavit at p. 52). Thus in her statutory declaration dated 9 March 2017 Ms Davies deposed that “[t]he subject course, Certificate III in Civil Construction and Plant Operations, was a course offered, promoted, managed and provided solely by the Registered Training Organisation TAFE Western. TAFE Western is an independent and unrelated party to Sureway Employment & Training Pty Ltd.”

55    It follows that, taking the evidence at its highest, there is no evidence that Sureway and Ms Davies could, or did refuse or fail on demand, to supply the Course to Mrs Payne. Rather, as the respondents submitted, all of the available evidence is that they were merely “messengers” in the sense that Sureway through its employee, Ms Davies, did no more than convey information to Mrs Payne about the eligibility requirements for the Course as set by TAFE NSW. It is therefore unnecessary to consider the respondents’ submission that in any event, the Course and its eligibility criteria constitute special measures as defined in s 8 of the RDA although I note that there is considerable force in that submission. The applicant’s claim of racial discrimination in any event is without any reasonable prospects of success.

7.    CONCLUSION

56    For these reasons, the application should be summarily dismissed with the applicant to pay the respondents’ costs as agreed or assessed.

Associate

Dated:    13 September 2019