Federal Court of Australia

Weir v Telstra Corporation Limited [2022] FCA 969

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) for leave to institute proceedings against each of the respondents be refused.

2.    The proceeding be listed for case management hearing on a date to be fixed in consultation with the parties not before 17 October 2022.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Mr Darren Weir and his wife Mrs Michelle Weir, respectively the first and second applicants, are the neighbours of Mr Dipjit Bose, the second respondent, in the Brisbane suburb of Bulimba.

2    In 2017, Mr Bose was employed by Telstra Corporation Limited (Telstra), the first respondent.

3    On 5 March 2021, Mr Weir and Mrs Weir respectively lodged complaints concerning alleged conduct of the respondents contrary to the Sex Discrimination Act 1984 (Cth) (SDA) with the Australian Human Rights Commission, pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) (AHRC Complaints). On 27 October 2021, the AHRC Complaints were terminated by a delegate of the President of the AHRC, pursuant to s 46PH(1)(c) of the AHRC Act.

4    Mr and Mrs Weir subsequently instituted proceedings against the respondents alleging various causes of action against either or each of them. One of the causes of action they plead is unlawful harassment, constituted by an alleged breach of the SDA in terms largely the same as the AHRC Complaints. Section 46PO(1) of the AHRC Act confers jurisdiction on this Court (concurrent with a conferral on the Federal Circuit and Family Court of Australia (Division 2)) to hear and determine such an application. However, the institution of such an application requires a grant of leave under s 46PO(3A)(a) of the AHRC Act. Mr and Mrs Weir did not secure such a grant of leave before instituting the proceeding. However, I do not doubt (and no party submitted otherwise) that such leave could permissibly be granted nunc pro tunc.

5    Telstra has submitted that a grant of leave should be refused. Although Mr Bose denies the allegations made against him, he neither consents to nor opposes a grant of leave.

6    The AHRC Act itself specifies no criteria which must be taken into account in relation to an application for leave under s 46PO. But that feature is shared with many other provisions which qualify a right to institute a proceeding by conditioning the right by a requirement for leave. A consideration of the subject matter, scope and purpose of s 46PO(3A), in the context in which it appears in the AHRC Act, yields a conclusion that here Parliament intended that a requirement for leave act as a filter to access to an exercise of judicial power in relation to a complaint of unlawful discrimination. Equally, such consideration yields the further conclusion that an application for leave is, necessarily, qualitatively different to the final hearing of a substantive application

7    The judgment of Mortimer J in James v WorkPower Inc [2018] FCA 2083 (James v WorkPower Inc) has, as each of the active parties to the leave application recognised in submissions, become something of a root authority on the subject of the granting of leave under s 46PO of the AHRC Act. That, with respect, is hardly surprising, as the case was decided shortly after the requirement for leave found in s 46PO(3A) was inserted into the AHRC Act by an amendment made by the Human Rights Legislation Amendment Act 2017 (Cth). James v WorkPower Inc offered the first opportunity for this Court to consider the import of the requirement for leave introduced by the amendment. As is evident from the preceding paragraph, even without the benefit of her Honour’s judgment, I should have reached a like conclusion to her Honour (James v WorkPower Inc, at [32]) as to the purpose of s 46PO(3A) of the AHRC Act being to provide a filter.

8    Having referred to James v WorkPower Inc in Praljak v Department of Defence [2021] FCA 1668 (Praljak), I stated, at [15], that, on an application for leave under s 46PO(3A) of the AHRC Act, it is for an applicant “to demonstrate that his case enjoys a sufficient prospect of success to warrant a grant of leave. He will not succeed in doing that unless he shows that the case is reasonably arguable.” I also expressed agreement with this cautionary note, sounded by Mortimer J in James v WorkPower Inc, at [39]:

As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

Having expressed that agreement, I allowed, at [16], that “the parties to a particular proceeding may conceive it to be in their respective forensic interests to promote the disposition of a leave application on a particular basis”. In Praljak, the parties did just that, in effect putting their respective evidentiary cases at their highest at the outset. So doing made it obvious that there was no factual controversy as to their dealings, only that the applicant’s case, even at its evidentiary highest, did not raise a reasonably arguable case of unlawful discrimination and never would.

9    In Budini v Sunnyfield [2019] FCA 2164, Charlesworth J, having referred with approval to the observations of Mortimer J in James v WorkPower Inc, at [39], set out above, stated, at [52]:

To her Honour’s observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because:

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

…

(c)    no reasonable cause of action is disclosed

I respectfully agree with this statement by Charlesworth J. Indeed, this statement may just be a different way of putting what Mortimer J stated in the last sentence of James v WorkPower Inc, at [39] and what I stated in Praljak, at [15] but to no different effect. It is difficult indeed to see how a case sufficient to warrant a grant of leave under s 46PO(3A) of the AHRC Act could ever be the subject of a successful application for summary judgment under r 26.01 of the Federal Court Rules 2011 (Cth). Conversely, a case without a reasonable prospect of success would not enjoy a sufficient prospect to warrant a grant of leave. That, surely, is the purpose of the s 46PO(3A) “filter” introduced by amendment of the AHRC Act.

10    In my view, one way in which it might be demonstrated that a case did not enjoy a sufficient prospect of success to warrant a grant of leave is where, taking a prospective applicant’s case at its highest, it could not, on the true construction of the applicable human rights legislation said to have been breached, here the SDA, amount to a contravention of that legislation.

11    As with a summary judgment application, some care must be exercised to ensure that, under the guise of preventing the prosecution in the Court of a complaint of alleged unlawful discrimination which could never in law constitute such discrimination, a complainant and would be applicant is not shut out from an exercise of judicial power on the merits of that complaint. But that need not prevent the reception even of extensive submissions about the meaning of, for example, the SDA. In this regard, there are, in my view, analogies to be drawn with observations to similar effect made by Barwick CJ in General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CLR 115, at 129 – 130 in relation to the hearing and determination of points of law on summary judgment applications. A like type of analogy was very recently drawn by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, at [19], in relation to the extension of time power conferred on the Court by s 477A(2) of the Migration Act 1958 (Cth). If the point of law were reasonably arguable it would be inappropriate to refuse leave. Conversely, if the point were clear and fatal to the complaint, it would be in keeping with the purpose of s 46PO of the AHRC Act to refuse leave.

12    Telstra sought to demonstrate that, as taken up and pleaded in their statement of claim, this was a clear case, fatal in law to the AHRC Complaints made by Mr and Mrs Weir.

13    As pleaded, Mr and Mrs Weir’s case proceeds from an allegation that, before 2013 to about January 2018, they contracted with Telstra for it to provide telecommunication and information services for personal and business purposes. These services included, in a period from 2013, services for a particular mobile telephone number for Mr Weir, a separate mobile telephone number for Mrs Weir, a landline telephone number connected at their Bulimba home (the landline) and internet services for the family home and a family business. That family business was operated from that home by a corporation of which Mr Weir was managing director and Mrs Weir was the administration manager. She performed those duties from an office at their Bulimba home. In 2017, Mr and Mrs Weir’s two children, a daughter then aged 16 and a son then aged 13 lived with them at their family home. Like Mr and Mrs Weir, their children had access to, and used, the landline and the internet services provided by Telstra.

14    Mr and Mrs Weir allege that the service for the landline for the family home was provided by Telstra under an unlisted service option, pursuant to which the telephone number and the address of the family home were not included in the print or online versions of the White Pages and were excluded from Telstra Directory Assistance.

15    To obtain the provision of the various services from Telstra, including the unlisted service option, Mr and Mrs Weir allege that they provided Telstra with their full names, their family home address, the family email address (used by them and their children), their mobile phone numbers, their unlisted home telephone number, Mr Weir’s business email address and their respective dates of birth (collectively, the private information). They allege that the private information was given subject to Telstra’s privacy policy as amended from time to time, which policy guaranteed the privacy of the private information and provided that the private information would be used only for limited specified purposes to do with Telstra’s business, unless Mr Weir and Mrs Weir gave their consent for its use for other purposes.

16    The alleged contraventions of the SDA are pleaded in [29] to [52] of the statement of claim presently filed in the proceeding. The alleged contraventions fall into five categories. These allegations were accurately summarised by Telstra in its outline of submissions as follows:

(a)    From 27 September 2017 to 17 November 2017, Mr Bose used his Telstra laptop to post at least eight advertisements on internet websites, purporting to offer Mr and Mrs Weir as participants in sexual activities, and which published their contact details (Advertisements). They allege that the placing of the Advertisements was sexual harassment by Mr Bose.

(b)    Between 6 and 18 October 2017, Mr Bose sent pornographic emails to Mr and Mrs Weir (Bose Emails). They allege that the sending of the Bose Emails was sexual harassment by Mr Bose.

(c)    In consequence of the Advertisements, other men sent pornographic emails to Mr and Mrs Weir between 16 and 18 October 2017 (Other Emails). They allege that the Other Emails constituted sexual harassment by the unidentified men, which was caused or induced by Mr Bose, such that by reason of s 105 of the SDA, he is taken to have also done those acts.

(d)    In consequence of the Advertisements, numerous men attended the Weirs’ family home (at times unidentified but apparently in October and November 2017) and sought to engage in the advertised sexual activities (Home Visits). Mr and Mrs Weir allege that the Home Visits constituted sexual harassment by the unidentified men, which was caused or induced by Mr Bose, such that by reason of s 105 of the SDA, he is taken to have also done those acts.

(e)    In consequence of the Advertisements, Mr and Mrs Weir received (at times unidentified but apparently in October and November 2017) text messages and phone calls from men seeking to engage in sexual activities (Phone Communications). They allege that the Phone Communications constituted sexual harassment caused or induced by Mr Bose and that by reason of s 105 of the SDA, he is taken to have also done those acts.

17    The meaning of “sexual harassment” is supplied by s 28A of the SDA. Amongst other conduct, sexual harassment can be where a person engages in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated: s 28A(1)(b), SDA. I am satisfied that it is at least arguable that the Advertisements, the Bose emails, the Other emails, the Home Visits and the Phone Communications, as pleaded, are capable of constituting sexual harassment, as defined, of Mr or Mrs Weir or each of them by Mr Bose. Telstra did not contend otherwise.

18    However, as Telstra correctly submitted, the SDA does not prohibit all forms of sexual harassment. The harassment must fall within a class of prohibition for which the SDA provides.

19    Mr and Mrs Weir allege that, in each instance, this alleged sexual harassment contravened either or each of s 28G(1) or s 28L of the SDA. These sections provide, materially:

28G    Goods, services and facilities

(1)    It is unlawful for a person to sexually harass, or harass on the ground of sex, another person in the course of providing, or offering to provide, goods, services or facilities to that other person.

28L    Commonwealth laws and programs

It is unlawful for a person:

(a)    in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or

(b)    in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;

to sexually harass, or harass on the ground of sex, another person.

20    As disclosed by the statement of claim, Mr and Mrs Weir seek to make Telstra additionally liable for each of Mr Bose’s alleged contraventions of the SDA on these successive premises:

(a)    At the time of the alleged sexual harassment, Mr Bose was either an employee of Telstra or acting as its agent.

(b)    Mr Bose committed the alleged sexual harassment in connection with his employment.

(c)    In these circumstances and by reason of the operation of s 106(1)(d) of the SDA, Telstra is liable for Mr Bose’s sexual harassment contraventions as pleaded.

21    In October 2017, s 105 and s 106(1)(b) of the SDA provided:

105    Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

106    Vicarious liability etc.

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

(a)    … ; or

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

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

22    Sections 28G and 28L were then each found within Div 3 of Pt II of the SDA. Section 105 of the SDA was amended in September 2021 so as to add a reference to Div 3 of Part II but that amendment did not have retrospective effect. It follows from the text of s 105, as applicable before then, that it then had no application either to acts made unlawful by s 28G or to acts made unlawful by s 28L. To the extent that the statement of claim seeks to rely upon s 105 of the SDA (see [43], [46] and [48] of the statement of claim as currently filed) so as to make Mr Bose liable for the acts of others in harassing Mr and Mrs Weir, it is based on a version of that section which was not in force at the time of the acts alleged. The reliance is, for that reason, fatally flawed. The “Other Emails”, “Home Visits” and “Phone Communications” each seek to render Mr Bose liable for the acts of others on the basis of this fatal flaw. This was conceded by Mr and Mrs Weir in their submissions in reply filed on the application and by their Senior Counsel at the hearing of the application for leave.

23    In light of that concession, Mr and Mrs Weir sought to tender a proposed amended statement of claim which disavowed any reliance on s 105 of the SDA. Instead, Mr Mrs Weir sought to allege that the intended or natural and probable consequence of Mr Bose placing the “Advertisements” was for individuals to send the Weirs the “Other Emails”, and make the “Home Visits” and “Phone Communications”. It was contended that the effect of this conduct being a natural and probable consequence of Mr Bose placing the “Advertisements” was sufficient to make Mr Bose liable for the conduct of those responsible for the “Other Emails”, “Home Visits” and “Phone Communications”.

24    For the reasons that follow, I do not consider that the revised case which the Weirs now seek to advance in the proposed amended statement of claim improves their case for a grant of leave. On any view, the conduct alleged in both versions of the statement of claim cannot amount to a contravention of ss 28G or 28L of the SDA.

25    The starting premise of Mr and Mrs Weir’s reliance on the SDA was a submission that anti-discrimination legislation such as the SDA “should be given a purposive and therefore a liberal or generous constriction”.

26    This submission was said to be supported by the approach of the members of the High Court to the construction of Equal Opportunity Act 1984 (WA), evident in IW v The City of Perth (1997) 191 CLR 1 (IW), at 11, per Brennan CJ and McHugh J, at 23 per Dawson and Gaudron JJ, at 27 per Toohey J, at 41 per Gummow J and at 70 per Kirby J.

27    One of the issues in IW was whether the giving of town planning approvals, including the exercise of a related discretion, constituted the provision of “services” for the purposes of State anti-discrimination legislation. Disparate views were reached by the members of the High Court on that subject in IW. However, there is certainly support in IW in the judgments of Brennan CJ and McHugh J, at 12 and Gummow J, at 39 for the proposition that anti-discrimination legislation is remedial in character and should therefore receive a liberal construction. IW was later understood as promoting such a construction of anti-discrimination legislation in AB v Western Australia (2011) 244 CLR 390 (AB), at [24], in which French CJ, Gummow, Hayne, Kiefel and Bell JJ stated:

The injunction contained in s 18 of the Interpretation Act 1984 (WA) is relevant to the task of construing the provisions of the [Gender Reassignment] Act [2000 (WA)]. Moreover, the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation (1991) 173 CLR 349 to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation ‘the courts have a special responsibility to take account of and give effect to the statutory purpose’. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a ‘fair, large and liberal’ interpretation: IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, at 39 per Gummow J, referring to Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.

The exhortation to prefer a purposive construction of State legislation, found in s 18 of the Interpretation Act 1984 (WA), has a federal equivalent: s 15AA, Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). One of the objects of the SDA, as expressed in s 3(c), is “to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity”. I accept that, if constructional choices are open in relation to the SDA, a construction which would promote that object is to be preferred to one which would not.

28    For all that, as Brennan CJ and McHugh J acknowledge in IW, at 12, “[The] task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.” The task of statutory construction remains one of commencing with the text of the relevant provision and of construing it “so that it is consistent with the language and purpose of all the provisions of the statute”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), at [69] per McHugh, Gummow, Kirby and Hayne JJ.

29    The SDA contains no special definition of “person”. That being so, a starting point as to the meaning to afford “person” in s 28G(1) and s 28L of the SDA is, subject to any contrary intention in the SDA, the meaning of “person” offered generally for federal legislation by s 2C of the Acts Interpretation Act:

References to persons

(1)    In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.

(2)    Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate.

30    So read, the reference to “person” in each of s 28G(1) and s 28L is, subject to any contrary intention, apt to refer to an individual (as is Mr Bose) but if the s 2C of the Acts Interpretation Act meaning is incorporated and these sections read in isolation, it could also refer to a body corporate (as is Telstra).

Section 28G

31    If so read and in relation to s 28G(1), the “person” who provided the pleaded services to Mr and Mrs Weir was not Mr Bose but rather Telstra. It was with Telstra that the pleaded contract for the provision of services existed. Yet Project Blue Sky requires s 28G(1) to be read in a way consistent with the language and purpose of all of the provisions of the SDA.

32    Although I have already made reference to the definition of “sexual harassment” in s 28A of the SDA, it is now desirable to set out that definition in full:

28A    Meaning of sexual harassment

(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)    For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)    the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)    the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)    any disability of the person harassed;

(d)    any other relevant circumstance.

(2)    In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

33    It is this defined understanding of “sexual harassment” which must be read into “sexually harass” or “harass on the ground of sex” in s 28G(1). It is inconsistent with this defined understanding that a body corporate may either sexually harass or be the recipient of sexual harassment. It is trite law that a body corporate has legal personality separate from its member shareholders: Salomon v A Salomon and Co Ltd [1897] AC 22. However, while a body corporate may have a place of incorporation and centre of main business activity, it is distinctly odd to conceive of it as having “sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin”, as referred to in s 28A(1A) of the SDA. A natural meaning of the definition of “sexual harassment” is that it is referring to the conduct of one individual (or perhaps group of individuals) in relation to another individual (or perhaps group of individuals). That suggests “person” where appearing in s 28G(1) cannot be a reference to a body corporate.

34    This impression is reinforced by reference to s 106 of the SDA. In its provision for vicarious liability, s 106 of the SDA refers to where an “employee or agent of a person does … an act that is unlawful under Division 3 of Part II”. The vicarious liability visited upon “that person” by s 106 of the SDA is visited upon the employer or principal of the person who has done the act which is unlawful under Div 3 of Pt II. Section 106 is therefore premised upon an individual being able to do an act which is unlawful under Div 3 of Pt II for which that individual’s employer or principal may be made liable. In turn it necessarily follows from s 106 that an individual may, for the purposes of s 28G(1), provide a service, even though the legal relationship with respect to the provision of that service may be as between a body corporate employer or principal and the person allegedly harassed. Yet further, focussing upon the target of sexual harassment in s 28G(1), although the entity having the legal relationship with the provider of the service may be a body corporate, it is a very unlikely and unnatural meaning to afford a meaning to that recipient “person” as including a body corporate, as opposed to referring to an individual.

35    Thus, reading s 28G(1) of the SDA in conjunction with s 28A and s 106 of that Act yields a conclusion that a contrary intention to s 2C of the Acts Interpretation Act is evident, such that “person” where appearing in that s 28G(1) must refer only to an individual. In contrast, it would be antithetical to the purpose of s 106 for “person” to carry any other than its wider, default meaning.

36    Although Mr and Mrs Weir’s case was not put on the basis that the seeking and receiving of services prohibition found in s 28G(2) of the SDA, the inverse of the conduct prohibited by s 28G(1), was applicable to the conduct pleaded, no contrary position is evident in s 28G(2) of the SDA. There, too, for like reasons, “person” can only be a reference to an individual.

37    This means that I do not accept Telstra’s submission that s 28G(1) can have no application to Mr Bose, because it was Telstra, not Mr Bose, who provided services to Mr and Mrs Weir.

38    Mr and Mrs Weir’s case, as put in submissions, was that s 28G(1):

… captures sexual harassment by employees who may not be directly ‘customer facing’ but whose position, privileges or role in the enterprise that provides or offers the services allows a superior opportunity to engage in sexually harassing conduct.

As so put, this submission is also based on the premise, flawed for the reasons just given, that, for the purposes of s 28G, “person” can include a body corporate.

39    This conclusion is not necessarily fatal to any application of s 28G(1) of the SDA in the circumstances pleaded. It was also put on behalf of Mr and Mrs Weir that:

services delivered in the modern world often do not involve a direct interface with an identifiable employee, yet that employee is capable of sexually harassing a customer. Modern service delivery typically involves the contribution of many to deliver the ‘helpful activity’ with which the consumer is ultimately provided.

40    It may be accepted, again at least for the purposes of an application for leave, that an individual providing a service may not be “customer facing”. However, the absence of any “customer facing”, of any dealing between the author of the impugned conduct and its recipient may make it difficult to characterise the conduct concerned as conduct made unlawful by s 28G(1).

41    Having regard to IW and AB, and at least for the purposes of an application for leave, it may also be accepted that the reference to “services” in s 28G(1) should not be narrowly construed. Approaching the meaning of “services” in this way, it may consequentially be accepted that an incident of a telecommunication services contract namely confidentiality of personal information such as home and email addresses and telephone numbers was a “service”.

42    The question becomes whether any of the pleaded conduct was, even arguably, “in the course of” the provision of such a service by Mr Bose?

43    As to this, Telstra placed particular emphasis in submissions on the discussion of the phrase “in the course of employment” in workers’ compensation law, as set out in the join judgment of French CJ, Hayne, Crennan and Kiefel JJ in Comcare v PVYM (2013) 250 CLR 246 (PVYM), at [19] and [22]. Regard to that joint judgment does indeed bear out Telstra’s contention that:

the course of employment extends beyond the work that the worker is employed to do to include the doing of things that are incidental to the employment, which may be taken to be satisfied if the employee was doing something that he or she was reasonably required, expected or authorised to do in order to carry out their actual duties.

Earlier in their joint judgment in PVYM, and with reference to Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, at 294 their Honours noted that, in that case and with reference to “in the course of employment”, Dixon J had stated that the general principle governing the ascertainment of the “course of employment” appeared then to be settled. To be in the course of employment “the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception”.

44    These cases concerned the meaning to give “in the course of employment” in workers’ compensation statutes. In the seemingly different context of the scope at common law of the vicarious liability of an employer for the wrongful acts of an employee, Issacs J in Bugge v Brown (1919) 26 CLR 110, at 118 stated:

The limit of the rule - expressed in the widest form by the phrase “the course of the employment” or “the sphere of the employment” – is when the servant so acts as to be in effect a stranger in relation to his employer with respect to the act he has committed, so that the act is in law the unauthorized act of a stranger”.

[Emphasis added]

Later in his Honour’s judgment, however, after a lengthy consideration of authorities concerning vicarious liability, Issacs J assimilated an understanding so derived of “in the course of employment” with the then understanding of that phrase in workers’ compensation law, stating, at 121:

When proper regard is had to the legal considerations to which I have referred, the question of whether a given act of a servant is or is not within the course of his employment is a question of fact dependent entirely upon the circumstances of the particular case. This is repeatedly adverted to in the House of Lords cases on the Workmen’s Compensation Act.

In that same case and also with reference to cases concerning vicarious liability, the other member of the majority, Higgins J stated, at 132:

It seems clear from these and other cases that the phrases “in the course of the employment,” “in the course of the service,” “within the scope (or sphere) of his authority,” &c., do not mean “in exercise of his authority” in the same sense as in the case of contracts made by agents. The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act to be done by the employee, is the criterion-whatever be the instructions as to the time, the place, or the manner of doing the act.

[Emphasis added]

45    In Stock Health Service Pty Ltd v Brebner (1964) 112 CLR 113 and with reference to the phrase “in the course of his profession” in legislation governing the prescription of drugs by veterinary surgeons Windeyer J (Kitto J agreeing) stated, at 122:

The words “in the course of his profession” mean in the performance of a distinct professional engagement. They point to acts done by a veterinary surgeon in his professional capacity- not to something done by him in some other capacity as for example when addressing a public meeting or in a letter to a newspaper on some subject of public controversy or as a director of a company.

[Emphasis added]

46    Text, context and purpose are everything in statutory construction. The cases to which I have just adverted must be read for present purposes with that firmly in mind. Even so, they do offer some guidance as to the meaning to give “in the course of providing … services” in s 28G(1) of the SDA. The phrase refers to something done by the individual in the provision of the services, not in some other capacity. As pleaded, the “Advertisements”, the Bose emails” “Other Emails”, “Home Visits” and the “Phone Communications” were each facilitated by access which Mr Bose enjoyed by virtue of his then employment with Telstra to the personal information of Mr and Mrs Weir but none of the conduct constituted by these pleaded acts occurred “in the course of” his providing services to them. The inevitable conclusion is that the conduct concerned occurred in the course of a private dispute between neighbours, not in the course of the provision of services by Mr Bose to Mr and Mrs Weir.

47    For these reasons, I conclude that s 28G(1) has no application to the conduct pleaded against Mr Bose. That conclusion applies equally to statement of claim presently filed in the proceeding and the proposed amended statement of claim propounded by the Weirs at the hearing of this application.

48    Telstra’s liability in relation to the pleaded conduct is dependent upon that conduct being unlawful by virtue of Div 3 of Pt II. It necessarily follows, insofar as that liability is based on an alleged contravention of s 28G(1) of the SDA, that s 106(1)(b) does not have the effect of rendering Telstra vicariously liable.

49    There is an additional reason why s 106(1)(b) has no such application. The chapeau to that paragraph of s 106(1) refers to “an employee or agent of a person does, in connection with the employment of the employee etc” an act (emphasis added).

50    In Vaughan v Legal Services Board (2009) 25 VR 536, it fell to the Victorian Court of Appeal to consider the liability of those administering a fidelity fund to pay compensation for loss arising from a defalcation by a solicitor. One issue in the case was whether particular trust money was, in terms of the governing statute, held “in the course of or in connection with the practitioner’s legal practice”. The case turned on the meaning and application of the alternative phrase “in connection with”, rather than “in the course of”. It is evident from the judgment of Kyrou AJA (with whom Buchanan and Neave JJA agreed), at [79], that what was critical to whether conduct was relevantly “in connection with” a legal practice was whether it was “merely incidental and peripheral to the central purpose of the relationship and dealings between [the solicitor] and the [clients]”. It seems to me that “in connection” is being used in a like way in s 106(1) of the SDA. Once again, Mr Bose’s pleaded access as an employee facilitated the alleged conduct but that conduct, as pleaded, had nothing to do with his provision of services to them. The conduct can only be viewed as “in connection with” a private dispute between neighbours. For this additional reason, which takes up a further submission made by Telstra, s 106(1)(b) of the SDA cannot apply so as to make it vicariously liable for the conduct in which Mr Bose allegedly engaged.

Section 28L

51    The conclusions reached in relation to s 28G(1) carry with them ramifications for any possible application of s 28L of the SDA to the pleaded contravening conduct.

52    For like reasons to those already given in relation to the meaning of “person” in s 28G of the SDA, “person” in s 28L must refer to an individual. “Person” in s 28L does not refer to Telstra.

53    The phrase “in the course of” also appears within s 26L. Once again, for reasons already given in relation to s 28G(1) of the SDA, the phrase “in the course of” in s 26L likewise refers to something done by the individual in the provision of the services described in s 28L, not in some other capacity.

54    At least for the purposes of the leave application, I accept the submission made on behalf of Mr and Mrs Weir that the Commonwealth program (or law) is capable of referring to the universal service obligation provided for in s 8CM of the Telstra Corporation Act 1991 (Cth) and as described in s 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth). So approaching the meaning of Commonwealth program or law is in keeping with that favoured by Spender J in Hough v Caboolture Shire Council (1992) 39 FCR 514, by Morling J in Harris v Bryce (1993) 41 FCR 388 and, latterly, by Halley J in Leach v Burston [2022] FCA 87. So to construe Commonwealth program or law is also in keeping with a construction counselled by IW and AB and promotes one of the objects of the SDA.

55    That is not the difficulty for Mr and Mrs Weir in seeking to rely upon s 28L of the SDA. Rather, the difficulty, as with s 28G(1), is that the conduct alleged cannot be regarded as having occurred “in the course of” performing any function, or exercising any power or carrying out any other responsibility for the administration of any Commonwealth program or law by Mr Bose. The conduct pleaded just occurred “in the course of” a dispute between neighbours. I therefore conclude that s 28L has no application to Mr Bose.

56    For like reasons to those given in relation to s 28G, s 106(1)(b) has no application so as to render Telstra liable in relation to the alternative case advanced under s 28L of the SDA.

Conclusion

57    For these reasons, I refuse to grant leave to Mr and Mrs Weir under s 46PO of the AHRC Act for the institution of proceedings against Mr Bose and Telstra in respect of the AHRC Complaints.

Associate:    

Dated:    19 August 2022