Federal Court of Australia
Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063
ORDERS
Applicant | ||
AND: | First Respondent MICHAEL HEATH Second Respondent MICHELLE DE RONCHI Third Respondent BRUCE ROSS-ADAMS Fourth Respondent TRACY ROWLING Fifth Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant have leave to make an application alleging unlawful discrimination by the first and second respondents.
2. The originating application as against the third, fourth and fifth respondents be dismissed.
3. The costs of the originating process be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FEUTRILL J:
Introduction
1 The applicant was an employee of the first respondent (St Ives). The applicant’s employment was terminated on 20 October 2015. The applicant alleges that during her employment she was subjected to unlawful discrimination comprising acts, omissions or practices that are unlawful under certain provisions of the Sexual Discrimination Act 1984 (Cth) (SD Act) and the Disability Discrimination Act 1992 (Cth) (DD Act). It is alleged that St Ives is directly or vicariously liable for that alleged unlawful discrimination.
2 At the time of the alleged unlawful acts, omissions and practices, St Ives employed the second respondent (Mr Heath) as Chief Executive Officer, the third respondent (Ms De Ronchi) as Chief Operating Officer, the fourth respondent (Mr Ross-Adams) as Executive General Manager of People and the fifth respondent (Ms Rowling) as Marketing Manager for Retirement Villages. Each of the employee respondents is alleged to have been involved directly or indirectly in alleged acts, omissions and practices unlawful under certain provisions of the SD Act. Each employee respondent is alleged to be liable for that respondent’s alleged unlawful discrimination. All allegations concern alleged events during 2015 up to the time the applicant’s employment was terminated.
3 On 7 January 2020, the applicant made a complaint to the Australian Human Rights Commission. On 4 September 2020, the Commission terminated the complaint under s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that the complaint was lodged more than 12 months after the alleged acts, omissions or practices took place.
4 Section 46PO(1) of the AHRC Act provides that, if a complaint has been terminated under s 46PH, a person affected in relation to the complaint may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. However, s 46PO(3A) provides that, except in certain circumstances that are not presently relevant, the application must not be made unless the court concerned grants leave to make the application.
5 On 2 November 2020, the applicant filed an originating process in this Court in which she sought leave pursuant to s 46PO(3A) of the AHRC Act to make an application to this Court alleging unlawful discrimination by each of the respondents (application).
6 To describe the application as hard fought would be an understatement. Shortly after the originating process was filed, the Court made orders for the exchange of affidavits and written submissions by 19 February 2021. These orders were extended and varied a number of times. Ultimately, the exchange was not completed until July 2022.
7 In the meantime, in February 2021 St Ives made an interlocutory application for orders, amongst others, that the applicant produce various medical reports, a draft affidavit and text message communications between the applicant and the employee respondents. On 3 March 2021, McKerracher J dismissed that application.
8 On 4 August 2021, McKerracher J ordered the parties to confer about whether the applicant's application for leave could be heard on the papers. A short time later, on 9 September 2021 (and amended and re-filed on 5 November 2021), St Ives filed an interlocutory application by which it sought further discovery from the applicant. On 4 November 2021, McKerracher J granted St Ives leave to amend its application, and made timetabling orders for the filing of material in relation to that application. On 20 January 2022, Jackson J dismissed that application.
9 Needless to say, the parties were not able to agree to the hearing of the application on the papers. On 10 August 2022, I made orders listing the application for hearing on 6 and 7 December 2022.
10 At the final hearing 11 affidavits were read and relied upon by the parties. These affidavits exhibited documents comprising more than 1,300 pages of documentary evidence. Further, St Ives cross-examined Dr Lawrence Blumberg, the deponent of two of those affidavits. Additionally, there was an extensive list of objections to the affidavit evidence that was the subject of conferral and ultimately oral argument. All this evidence was directed to the exercise of the Court’s discretion on the question of leave.
11 With the benefit of hindsight, it is difficult to square this process with the requirements of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) and judicial statements to the effect that s 46PO(3A) of the AHRC Act is intended to filter out and preclude complaints the merits of which are disproportionate to the time and resources likely to be consumed by dealing with them in substantive proceedings. Further, it would be ‘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’: James v WorkPower Inc [2018] FCA 2083 at [32], [39] (Mortimer J). It is with regret that I accept some responsibility for this outcome by listing the final hearing for two days and not intervening and exercising a greater degree of control over the manner in which that hearing was conducted.
12 For the reasons that follow, leave will be granted for the applicant to make applications to the Court alleging unlawful discrimination by St Ives and Mr Heath. Leave will be refused for the applicant to make applications against the other employee respondents and, as such, the application as against those respondents will be dismissed. I will hear the parties on the question of costs.
Legislative framework
Complaints of unlawful discrimination are to be made to the Commission
13 Section 46P(1) of the AHRC Act provides that a written complaint may be lodged with the Commission alleging that one or more acts have been done or one or more omissions or practices have occurred and alleging that those acts, omissions or practices are unlawful discrimination. Section 3 defines ‘unlawful discrimination’ to mean acts, omissions or practices that are unlawful under, amongst others, Pt II of the SD Act or Pt 2 of the DD Act and includes any conduct that is an offence under Pt 2 of Div 4 of the DD Act. Pt II of the SD Act relevantly includes ss 14(2) and 28B.
14 Section 46P(1A) of the AHRC Act provides that it must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination. The complaint must also set out, as fully as practicable, the details of the alleged acts, omissions or practices: s 46P(1B). If it appears to the Commission that a person wishing to make a complaint requires assistance to formulate the complaint or reduce it to writing, the Commission must take reasonable steps to provide appropriate assistance to the person: s 46P(4). If a complaint is made under s 46P, the Commission must refer the complaint to the President: s 46PD. That is, a complaint that conforms to the requirements of s 46P.
15 Section 46PH(1) provides that the President may terminate a complaint on any of the grounds set out in that subsection. At the relevant time, that included if the complaint was lodged more than 12 months after the alleged acts, omissions or practices took place: s 46PH(1)(b).
16 The President must terminate a complaint if the President is satisfied that:
(a) the complaint is trivial, vexatious, misconceived or lacking in substance or there is no reasonable prospect of the matter being settled by conciliation: s 46PH(1B); or
(b) there would be no reasonable prospect that the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) would be satisfied that the alleged acts, omissions or practices are unlawful discrimination: s 46PH(1C).
17 Section 3 defines ‘Commission’ to mean the Australian Human Rights Commission established by the AHRC Act; ‘President’ to mean President of the Commission; ‘complaint’ to mean, relevantly, a complaint lodged under Div 1 of Pt IIB; ‘respondent’ to mean, in relation to a complaint, the person or persons against whom the complaint is made.
18 The Commission is established under Pt II of the AHRC Act. It consists of the President and the Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner, Age Discrimination Commissioner, Disability Discrimination Commissioner and the National Children’s Commissioner appointed under various Commonwealth legislation. The President and the Human Rights Commissioner are appointed by the Governor-General under the AHRC Act. The functions of the Commission include to inquire into, and attempt to conciliate, complaints of unlawful discrimination: s 11(1)(aa). The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions: s 13. For the purposes of the performance of its functions, the Commission may make an examination or hold an inquiry in such manner as it thinks fit and, in informing itself in the course of an examination or inquiry, is not bound by the rules of evidence: s 14(1). The Commission may, by writing under its common seal, delegate to a member of the Commission, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under the AHCR Act: s 19(1).
19 It is to be noted that it is the President, not the Commission, that has power to terminate a complaint. However, the power of the President may be delegated. Further, that power is to be exercised after the complaint is referred to the President in accordance with s 46PD.
Sex discrimination and disability discrimination
20 The applicant’s originating process alleges that she has been subjected to unlawful discrimination under ss 14, 28A, 28B and 94 of the SD Act and s 15 of the DD Act. These allegations are set out in detail in a statement of claim that was filed with the originating process. The applicant alleges that St Ives, as employer, was vicariously or directly liable for acts of the employee respondents by operation of ss 106 and 107 of the SD Act and s 123 of the DD Act. The applicant also alleges that the employee respondents are directly liable for unlawful discrimination under ss 28B and 94 of the SD Act or indirectly liable for acts of other employees under s 105 of the SD Act.
21 Separately, the statement of claim contains allegations of breaches of the applicant’s contract of employment and provisions of the Fair Work Act 2009 (Cth) (FW Act) that sit outside the legislative framework of the AHRC Act. The applicant does not require leave to pursue those causes of action.
22 Section 14(2) of the SD Act provides that it is unlawful for an employer to discriminate against an employee on grounds, amongst others, of the employee’s sex:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
23 Section 5 of the SD Act relevantly describes sex discrimination as follows:
5 Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
…
24 Section 28B of the SD Act provides that it is unlawful for a person to sexually harass or harass on the ground of sex an employee or prospective employee of that persons, or for an employee of the same employer to do likewise to another employee or prospective employee, or for employees or employers (first person) to sexually harass or harass on the grounds of sex another person (second person) if the harassment occurs in connection with either the first or second person being an employer or employee.
25 Section 28A of the SD Act describes sexual harassment as follows:
28A Meaning of sexual harassment
(1) For the purposes of this Act, 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.
…
26 Section 14(2) is directed to unlawful conduct of an employer. Section 28B is directed to an employer as well as, relevantly, other employees. Section 106 provides that, subject to taking all reasonable steps to prevent the acts, an employer is vicariously liable for acts of an employee or agent unlawful under, amongst other provisions, s 28B. Section 107 provides that where it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate in the matter so acted on that ground. Therefore, s 107 operates as a mechanism to attribute acts of a natural person to a body corporate for the purpose of the SD Act.
27 Section 105 provides that a person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under, amongst others, ss 14(2) and 28B, is taken to have done that act. In that way other employees or agents of an employer may also be liable for acts of unlawful discrimination of an employer or employee.
28 Separately, s 94 provides that it is an offence for a person to commit an act of victimisation against another person. A person is taken to commit an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person has done or proposes to do (or the first person believes the other person has done or proposes to do) various acts or things concerning the exercise of rights under the AHRC Act or an allegation that person has done an act that is unlawful by reason of a provision of Part II of the SD Act. Section 94 is within Part IV, not Part II, of the SD Act, but it is referred to in the applicant’s originating process.
29 Part 2 of the DD Act relevantly includes s 15(2) that provides:
15 Discrimination in employment
…
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
30 Section 4 of the DD Act defines ‘disability’ to include total or partial loss of a person’s bodily or mental functions. Section 123 of the DD Act contains provisions that attribute states of mind and acts of a natural person to a body corporate for the purposes of the DD Act. It is a mechanism by which a body corporate can be made directly liable for the acts of a person under s 15 of the DD Act.
31 Sections 5 and 6 of the DD Act describe direct and indirect disability discrimination as follows.
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Application to the Federal Court
32 Section 46PO relevantly provides (notes omitted):
46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(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.
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
33 It follows that a person affected may apply to the Court alleging unlawful discrimination by one or more the respondents to the ‘terminated complaint’. That is, the complaint referred to the President and terminated by the President.
Leave principles
34 As noted above, the President terminated the complaint under s 46PH(1)(b) and, accordingly, under s 46PO(3A) the applicant requires leave to make an application to the Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
35 In WorkPower, Mortimer J made the following relevant observations concerning the operation of the discretion to grant leave in s 46PO(3A):
31 Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.
32 The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.
36 Mortimer J went on to observe (at [34]-[35]), there are a number of features of AHRC Act that inform the exercise of the discretion. A complaint under s 46P must allege reasonably arguable acts, omissions or practices of unlawful discrimination: s 46P(1A). That provision was introduced into the AHRC Act at the same time as s 46PO(3A). The President must dismiss a complaint if satisfied that it is vexatious, misconceived or lacking in substance, or otherwise there would be no reasonable prospect this Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination: ss 46PH(1B), 46PH(1C). Also, that the exceptions to s 46PO(3A) inform the construction and operation of the leave requirement. To these observations I would add that, at the relevant time, the AHRC Act provided, the President may, not must, terminate a complaint if lodged more than 12 months after the alleged acts, omission or practices took place: s 46PH(1)(b).
37 Her Honour then concluded:
37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.
38 There may be a range of other permissible considerations including:
(1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8) other factors that are often considered in leave applications – such as prejudice to a party.
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.
38 This explanation of the construction and application of discretion to grant leave has been considered and applied with approval in subsequent decisions: e.g., Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86]-[90]; Douthie v Commonwealth [2022] FCA 720 at [18]-[20].
39 In my view, detailed arguments on merits of the kind that were undertaken on the application in this case are to be discouraged. Applications for leave should be capable of determination relatively quickly and questions as to whether or not there is arguable merit in an application should not, in general, require extensive argument and (or) voluminous evidence as was produced in support of and in opposition to the application in this case. Detailed argument and extensive evidence on an application for leave tends to undermine the purpose of s 46PO(3A) as a 'filter'.
40 These observations do not detract from what Charlesworth J said in Budini v Sunnyfield [2019] FCA 2164 at [52] to the effect that 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 2011 (Cth). Further, 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 the applicant has no reasonable prospects of successfully prosecuting the proceeding or part of the proceeding, or no reasonable cause of action is disclosed. These principles inform the extent to which it is ‘reasonably arguable’ that alleged acts, omissions or practices are unlawful discrimination so as to warrant the grant of leave. However, there remains a distinction between determining if allegations are reasonably arguable such that leave should be granted and the processes of the Court engaged and, once engaged, determining if the applicant has no reasonable prospect of successfully prosecuting that claim. The Court undertakes different enquiries in each of these circumstances and detailed argument and extensive evidence that may be appropriate to determine the question of ‘reasonable prospects of success’ for the purpose of summary dismissal may not be appropriate to determine the question of ‘reasonably arguable’ for the purposes of leave.
41 It is also to be borne in mind that an important policy inherent in s 46PH(1)(b) is that of ensuring that allegations of unlawful discrimination are made promptly: Budini at [58]-[59]. Delay in commencing proceedings may result in prejudice that is insidious and unable to be positively proved: Rossi v Qantas Airways Ltd (No 2) v [2020] FCA 1080 at [25]-[26]; see also Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551, 555 (McHugh J). Nonetheless, the extent to which insidious prejudice resulting from delay is a factor, or important factor, to be taken into account in considering whether leave should be granted may depend upon the extent to which notice of the allegations in question have been given to the respondents to the complaint within a reasonable period of time. Adequate notice may enable respondents to take appropriate steps to collect and preserve relevant evidence before any proceedings in the Commission are commenced.
42 Ultimately, s 46PO(3A) involves the exercise of a discretion. There are no express limitations on the exercise of that discretion except that, of course, it must be exercised judicially and, it is implicit, as Mortimer J said in Workpower, that the exercise is governed by the interests of the administration of justice. Many factors may be relevant to the exercise of the discretion. However, the weight to be given to those factors is a matter for the Court in the exercise of the discretion.
Evidence
Applicant’s evidence
43 The applicant read and relied upon two affidavits she made in support of her application. Her first affidavit sworn on 8 January 2021 was tendered as Exhibit 1.1. Her second affidavit, undated but provided to the Court on 9 July 2021, was tendered as Exhibit 1.2.
44 The applicant’s first affidavit deposes to facts in support of the allegations contained in a statement of claim she filed on 2 November 2020. The applicant's second affidavit deposes facts directed to an explanation for the delay between the termination of her employment in October 2015 and the complaint she made to the Commission in January 2020.
45 The applicant read and relied on two affidavits of Dr Blumberg. The first affirmed on 7 January 2021 was received as Exhibit 2.1. The second affirmed on 4 August 2021 was received as Exhibit 2.2. Dr Blumberg is a consultant psychiatrist who has treated the applicant since February 2016. Exhibited to his first affidavit is his medical report dated 7 January 2021 and certain instructions in relation to that report. Exhibited to his second affidavit is his medical report dated 14 July 2021 and certain instructions he received.
46 The applicant read and relied upon an affidavit of Mr Phillip George Brunner sworn 18 November 2021 and received as Exhibit 3. Mr Brunner is a solicitor employed by Bailiwick Legal, the solicitors for the applicant. His affidavit exhibits a medical report of Dr Blumberg dated 14 June 2021.
47 The applicant read and relied upon two affidavits of Ms Matilda Jessica Lloyd. Ms Lloyd is a paralegal employed by Bailiwick Legal. Her first affidavit was sworn 3 February 2022 and received as Exhibit 4.1. Her second affidavit was sworn 12 July 2022 and received as Exhibit 4.2. Ms Lloyd's first affidavit exhibits another medical report of Dr Blumberg dated 2 February 2022 and certain instructions in relation to that report. Ms Lloyd's second affidavit exhibits various correspondence between Bailiwick Legal and solicitors acting for St Ives and (or) the Commission.
48 The applicant tendered a medical report of Dr Anthony J Mander received as Exhibit 5. Dr Mander is a consultant psychiatrist. He prepared his medical report for SRB Legal, as the solicitors for AAI Limited, trading as GIO. That report appears to have been prepared for the purposes of a Workers' Compensation claim the applicant made against St Ives.
St Ives' evidence
49 St Ives read and relied on two affidavits of Ms Jenny Maree McKenzie. Ms McKenzie’s first affidavit affirmed 14 April 2021 was received as Exhibit 6.1. Ms McKenzie’s second affidavit affirmed 28 April 2021 was received as Exhibit 6.2. Ms McKenzie’s first affidavit is more than 700 pages in length. As explained in more detail later, the majority of the documents exhibited to that affidavit are directed towards St Ives' submissions to the effect, based on contemporaneous text messages and notes of the applicant, it is not reasonably arguable that Mr Heath’s sexual advances to which she deposes were ‘unwelcome’.
The evidence of Mr Heath, Ms De Ronchi and Mr Ross-Adams
50 Mr Heath, Ms De Ronchi and Mr Ross-Adams read and relied upon an affidavit of Mr Alexander Phillip Samuel Gregg. Mr Gregg’s affidavit was sworn 14 April 2021 and received as Exhibit 7. That affidavit exhibits correspondence passing between the respondents' solicitors and the Commission.
51 Ms De Ronchi and Mr Ross-Adams rely upon this affidavit in support of the contention that the Court has no jurisdiction to hear the allegations of unlawful discrimination by them. The essence of their argument is that the Commission did not accept the applicant’s complaint against them and the President did not terminate a complaint against them. Therefore, they are not respondents to the terminated complaint within the meaning of s 46P of AHRC Act. The affidavit is also relied upon in support of submissions to the effect that all three of these respondents are prejudiced by the applicant’s delay in making her complaints to the Commission.
Objections to evidence
52 St Ives made a number of objections to the applicant’s affidavit evidence. These objections were resolved by agreement between the parties, determined at the hearing or not pressed. The resolution of these objections was set out in an aide memoire the respondents' filed with the Court and dated 21 December 2022. I have taken that table into account in my consideration of the affidavit evidence.
Complaint to the Commission
53 On 7 January 2020, the applicant lodged a complaint with the Commission alleging that certain acts, omissions or practices comprised unlawful discrimination. The complaint named St Ives, Mr Heath, Ms De Ronchi and Mr Ross-Adams as respondents. The applicant’s complaint raised five matters involving alleged unlawful discrimination.
54 The first matter concerned allegations to the effect that Mr Heath sexually harassed the applicant on 16 or 17 January 2015 by making unwelcome sexual advances and engaged in other unwelcome conduct of a sexual nature involving revealing affections for her, forcefully kissing her, placing his hand on and rubbing her upper thigh under her dress, pushing her against a wall to kiss her and grabbing her neck and shoulders to kiss her. These events took place at the applicant’s home and she told Mr Heath that his conduct was inappropriate a number of times and asked him to leave. Mr Heath further sexually harassed the applicant between January and October 2015 through inappropriate text messages of a sexual nature, sending gifts, visiting her home, requesting physical contact, making physical contact and asking the applicant to be affectionate towards him. The applicant alleged that Ms De Ronchi and Mr Ross-Adams were informed of Mr Heath’s conduct and took no steps to prevent Mr Heath from continuing his conduct.
55 The second matter concerned allegations to the effect that during her employment with St Ives the applicant was subject to unfavourable conditions of employment due to her sex, alternatively her disability, and (or) alternatively due to raising complaints about Mr Heath’s conduct. The specific allegations of the conduct were all attributed to acts, omissions or practices of Mr Heath and these involved work outside the scope of her duties, failing to schedule work meetings, refusing leave for her disability, working during leave, removing key aspects of her role without consultation, holding meetings at times she could not attend, failing to address complaints of understaffing and overworking and complaints about other employees (including Ms De Ronchi and Mr Ross-Adams). These acts, omissions or practices were alleged to involve treating the applicant differently from her peers and others reporting to Mr Heath.
56 The third matter concerned allegations to the effect that during her employment with St Ives the applicant was subjected to unfavourable conditions of employment due to her sex, alternatively her disability, and (or) due to raising complaints about Mr Heath’s conduct by failing to afford the applicant a promotion that she had been promised. The applicant alleged that she was promised a promotion in February 2015, she took leave during April and June 2015 due, in part, to Mr Heath’s conduct and he was informed of that fact and in July 2015, Mr Heath announced a restructure that had the effect of denying the applicant the promised promotion.
57 The fourth matter concerned allegations to the effect that the applicant’s employment was terminated in October 2015 due to her sex, and (or) in the alternative her disability, and (or) in the alternative her complaints about Mr Heath’s conduct. The applicant alleged that Mr Heath informed her that her employment was being terminated on the grounds of her performance. The applicant alleged that she raised her discrimination and, in effect, she was denied notice of the allegations of poor performance and the opportunity to respond to them.
58 The fifth matter concerned allegations to the effect that during her employment with St Ives the applicant was subjected to harassment, intimidation, disparagement, victimisation and bullying by a number of other employees on account of her sex and (or) disability. The applicant’s complaint identified: Mr Heath’s alleged sexual misconduct and other aggressive and intimidating conduct towards her; continual requests that she sign a deed of settlement and release on termination of her employment; allegations that Ms De Ronchi shouted at and behaved aggressively towards the applicant; allegations that Mr Ross-Adams had told her not to come to the office regularly on her return from leave; allegations that Mr Ross-Adams had suggested that the applicant should resign, failed to offer her support or respond to her complaint about Mr Heath.
59 The applicant alleged that:
(a) St Ives had engaged in unlawful discrimination contrary to ss 14(2) and 28B(1)(a) of the SD Act and ss 15(2), 35(1) and 42(1) of the DD Act.
(b) Mr Heath had engaged in unlawful discrimination contrary to ss 28B(2), 28B(6) of the SD Act and ss 15(2), 35(1) and 42(1) of the DD Act.
(c) Ms De Ronchi and Mr Ross-Adams had engaged in unlawful discrimination contrary to s 14(2) of the SD Act and ss 15(2), 35(1) and 43 of the DD Act as well as aided, permitted and assisted Mr Heath in contravening the SD Act and DD Act.
60 On 13 January 2020, the applicant’s solicitors received an email message from the Commission confirming acceptance of the applicant’s complaint. On 14 April 2020, the applicant’s solicitors received an email from Mr William Cocks (described as an Accredited Mediator NMAS, Investigator/Conciliator, Investigation and Conciliation Service). In that email Mr Cocks said that the applicant’s allegations of harassment under the DD Act had not been ‘accepted’ under the harassment provisions as they are more appropriately dealt with under the disability discrimination provisions in employment. He also said:
I also note that [the applicant] has requested that [Ms De Ronchi] (Chief Operating Officer) and [Mr Ross-Adams] (Executive General Manager of People) be included as respondents to the complaint. Neither Ms De Ronchi nor Mr Ross-Adams have been accepted as respondents to the complaint at this stage. This is because, based on the information provided, it is unclear what allegations have been made against them under the [DD Act]. In relation to the [SD Act] non employer respondents cannot be accepted due to section 14.
61 On 14 April 2020, the Commission sent a copy of the complaint to St Ives and Mr Heath and requested responses from them. On 11 June 2020, the Commission received a response from St Ives. On 12 June 2020, the Commission sent a copy of St Ives' response to the applicant. On 15 June 2020, the Commission received a response from Mr Heath. On the same day, a copy of Mr Heath’s response was sent to the applicant. On 27 July 2020, the Commission sent the applicant a letter setting out all the information it had received and invited the applicant to provide further information and comments in support of her complaint. On 6 August 2020, the applicant responded to that invitation.
62 On 4 September 2020, the President gave the applicant a notice of termination of her complaint. That notice of termination identified St Ives and Mr Heath as the only respondents to the complaint. The complaint was terminated under s 46PH(1)(b) on the ground that the complaint was lodged more than 12 months after the alleged acts, practices or omissions.
63 On 4 September 2020, a delegate of the President provided reasons for the termination of the complaint. Those reasons include the following statement:
In her original complaint, [the applicant] sought to include [Ms De Ronchi] (Chief Operating Officer) and [Mr Ross-Adams] (Executive General Manager of People) as respondents to the complaint. As advised on 14 April 2020, nether Ms De Ronchi or Mr Ross-Adams have been accepted as respondents to the complaint as it is unclear how the provisions of the [DD Act] and [SD Act] apply to the matters raised in relation to these individuals. Further, under section 14 of the [SD Act], a claim of sex discrimination can only be made against ‘an employer’.
64 As to termination of the complaint the Commission accepted against St Ives and Mr Heath under s 46PH(1)(b), the delegate of the President provided reasons explaining that decision. The reasons given were the significant delay (approximately four years and three months) in lodging the complaint after the alleged acts occurred and potential prejudice to the respondents arising from that delay. That prejudice was identified as the potential loss of key employees, fading recollections and loss or destruction of potentially useful information. Although it was acknowledged that the applicant had put the respondents on notice of her claims no specific proceedings were commenced requiring the respondents to respond to the allegations that form the specific subject matter of the complaint.
65 It follows that the President has not dealt with the merits of the complaints made against any of the proposed respondents. The complaint was not accepted against Ms De Ronchi and Mr Ross-Adams. The complaint against St Ives and Mr Heath was dismissed due to the potential prejudice to them of the substantial delay between the events the subject of the alleged unlawful discrimination and the applicant lodging a complaint with the Commission.
Jurisdictional objections
66 This point is an opportune place to address the jurisdictional objections that Ms De Ronchi, Mr Ross-Adams and Ms Rowling make.
67 These respondents contend that the Court has no jurisdiction to grant the applicant leave to make an application to the Court alleging unlawful discrimination because Ms De Ronchi, Mr Ross-Adams and Ms Rowling were not respondents to the ‘terminated complaint’. The only respondents to the ‘terminated complaint’ were St Ives and Mr Heath.
68 The applicant accepts that the Court has no jurisdiction to grant leave for her to make an application against Ms Rowling. Therefore, that aspect of the application will be dismissed.
69 Regarding the others, the substance of the contention appears to be that as the Commission did not ‘accept’ the applicant’s complaint against Ms De Ronchi and Mr Heath that part of the applicant’s complaint was not referred to the President. Therefore, the President only terminated that part of the complaint that was made against St Ives and Mr Heath.
70 The applicant contends that it is not possible for the Commissioner to refuse to ‘accept’ a complaint in the manner in which Mr Cocks evidently purported to do by way of his email of 14 April 2020. The applicant contends that the complaint lodged under s 46P was against four respondents and that was the ‘terminated complaint’ for the purposes of s 46PO(1) of the AHRC Act. The applicant relies on the definition of ‘complaint’ and ‘respondent’ referred to earlier in these reasons in support of her contentions.
71 In my view, the Commission only has an obligation to refer a complaint lodged with the Commission to the President in accordance with s 46PD if the complaint is made to the Commission ‘under section 46P’, meaning a complaint that meets the description of a complaint made in accordance with the requirements of ss 46P(1A) and 46P(1B). In substance, the email of Mr Cocks of 14 April 2020 and the statement of the President’s delegate in the reasons set out earlier are to the effect that the Commission was of the view that, insofar as the complaint was against Ms De Ronchi and Mr Ross-Adams, it was not ‘reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination’ (s 46P(1A)) or details of the alleged acts, omissions or practices involving them were not set out as fully as practicable (s 46P(1B)). Therefore, it was within the power of the Commission not to refer the applicant’s complaint to the President insofar as it concerned Ms De Ronchi and Mr Ross-Adams if the complaint against those respondents failed to meet the requirements of s 46P(1A) and (or) s 46P(1B).
72 The extent to which the Commission was obliged to refer the complaint against Ms De Ronchi and (or) Mr Ross-Adams to the President because the complaint against them, in fact and law, met the requirements of s 46P(1A) and (or) s 46P(1B) is not raised and need not be considered on this application. Likewise, it is not necessary to consider the extent to which the Commission was obliged, but failed, to exercise its powers under s 46P(4) to provide assistance to the applicant to overcome the deficiencies in her complaint.
73 In substance, the Commission refused to refer part of the applicant’s complaint to the President because that part of the complaint was not ‘made under section 46P’. The Commission was entitled to so refuse. Therefore, the applicant’s complaint that was referred to the President and terminated by the President only concerned St Ives and Mr Heath as respondents to the referred complaint. Accordingly, the Court does not have power to grant the applicant leave to make an application to the Court alleging unlawful discrimination against Ms De Ronchi and Mr Ross-Adams under s 46PO(1) and s 46PO(3A) of the AHRC Act.
74 Even if I am wrong and the Court has jurisdiction or power to grant leave to make an application against Ms De Ronchi and Mr Ross-Adams, for the reasons given later, in the exercise of the Court’s discretion, I would refuse to grant leave for the applicant to make an application against them.
Suppression and non-publication order
75 As mentioned earlier, the applicant filed an originating application for leave to make an application on 2 November 2020. At the same time as filing the originating application, she also filed a statement of claim.
76 On 18 November 2020, McKerracher J made an order pursuant to s 37AF of the Federal Court Act to the effect that, pending determination of the application for leave, the statement of claim is confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules and its publication or disclosure be prohibited except to the parties and their legal representatives.
77 As already noted, a number of affidavits were read and relied upon at the hearing of the application for leave. The facts deposed in those affidavits include ‘information’ of the character contained in the statement of claim. The facts deposed in the affidavits and the facts pleaded in the statement of claim were referred to in open court and were the subject of written and oral submissions. At the hearing of the application, no party drew the Court’s attention to the order of McKerracher J of 28 November 2020 and no party objected to the reading of the affidavits or reference to them and the statement of claim in open court. There were no members of the public present during the hearing to whom any part of the ‘information’ contained in the statement of claim was published or disclosed. Also, the suppression and non-publication order does not extend to the originating process to which is attached a copy of the applicant’s complaint to the Commission.
78 Nonetheless, as leave will be refused to make an application alleging unlawful discrimination by Ms De Ronchi, Mr Ross-Adams and Ms Rowling and no party has sought to discharge or vary the order of McKerracher J of 28 November 2020, except to the extent the allegations are contained in the applicant’s complaint to the Commission, these reasons do not publish or disclose the allegations made in the statement of claim against Ms De Ronchi, Mr Ross-Adams and Ms Rowling or the facts deposed in support of those allegations.
Application to the Court
79 The facts the applicant deposes in her first affidavit (Exhibit 1.1) support the allegations contained in the statement of claim alleging unlawful discrimination by St Ives and Mr Heath.
80 The facts the applicant deposes in her second affidavit (Exhibit 1.2) and in the opinions expressed in the reports of Dr Blumberg exhibited to his affidavits sworn 7 January 2021 and 4 August 2021 (Exhibit 2.1, 2.2) and the affidavits of Mr Brunner sworn 18 November 2021 and Ms Lloyd sworn 3 February 2022, assert an explanation for the applicant’s delay in making a complaint to the Commission. Dr Blumberg has diagnosed the applicant as suffering from major depressive illness and post-traumatic stress disorder. Dr Blumberg opines that in substance, as a result of her mental illness the applicant was unable to properly instruct her solicitors to make a complaint to the Commission until January 2020. The applicant also deposes facts that indicated that she had difficulty providing instructions to her solicitors due to the symptoms of her mental illness.
81 Notwithstanding the applicant’s evidence in support of her application, the respondents contend that leave should be refused for two principal reasons.
82 First, the respondents contend that, as a matter of fact, the allegations of sexual discrimination based on the alleged conduct of Mr Heath are not reasonably arguable or are fanciful when regard is had to contemporaneous communications and records. The respondents submit that these documents reveal that Mr Heath’s sexual advances towards the applicant were subjectively welcomed by her and, as such, could not have been sexual discrimination.
83 Second, there was significant delay between the events the subject of the alleged unlawful discrimination and the complaint to the Commission. The respondents contend, in substance, that the delay is unexplained because despite the applicant’s mental illness she was able to instruct her solicitors to commence Workers’ Compensation proceedings against St Ives and provide other instructions to her solicitors concerning the allegations of unlawful discrimination well before January 2020 when the complaint was made to the Commission.
Reasons for termination of the complaint
84 As has already been noted, the reasons for the President dismissing the complaint is a relevant consideration for the Court in the exercise of the discretion to grant leave under s 46PO(3A). In this case, that consideration is of diminished relevance because the President has not dismissed the complaint after considering the merits of the allegations of unlawful discrimination.
85 The President dismissed the complaint on the ground of delay under s 46PH(1)(b) of the AHRC Act. Delay is a relevant factor, however, this Court is in as good a position as the President to consider that question and the extent to which delay has (or has not) caused prejudice to the respondents. Also, on the present application, the Court is acting on the evidence that the parties have adduced on the application with respect to delay which may (or may not) be the same evidence as that which was before the President when the delegate formed the view that the respondents were potentially prejudiced by the delay in this case.
Merits of the allegations of unlawful discrimination
Applicant’s submissions
86 The applicant submits that the facts pleaded in the statement of claim are supported by the facts she deposes in her first affidavit. She submits that these facts disclose reasonably arguable claims of unlawful discrimination against each of the respondents.
87 The applicant submits that sexual harassment occurs where a person makes an unwelcome sexual advance or an unwelcome request for sexual favours to another person or engages in unwelcome conduct of a sexual nature in relation to that other person (which includes the making to or in the presence of that person a statement of a sexual nature concerning that person, whether oral or in writing) in a situation where a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated: s 28A of the SD Act.
88 The applicant submits that ‘unwelcome conduct’ for the purposes of s 28A of the SD Act (sexual harassment) can mean an advance, request or conduct that was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive. Kissing, touching inappropriately and asking for sex are examples of unwelcome conduct that constitute sexual harassment. The SD Act prohibits such unwelcomed conduct when it is accompanied by reasonable grounds for belief that resistance to that conduct will result in disadvantage in connection with a person's employment or actual disadvantage. The SD Act is concerned with the unlawful exploitation of a position of power and, in the context of unwelcome sexual requests or conduct, prohibits a kind of blackmail: Aldridge v Booth (1988) 80 ALR 1 at 5.
89 The applicant submits that sexual harassment of a woman is a form a sexual discrimination for the purposes of s 15 of the SD Act: Aldridge v Booth at 16-17. Rejection of unwanted sexual demands leading to retaliation in the form of loss of employment opportunities is an example of sexual discrimination: O’Callaghan v Loder [1983] 3 NSWLR 89. A single act of discrimination in the way of sexual harassment is sufficient. Further, it is discrimination for an employer to permit sexual harassment and thereby deny an employee of a benefit of employment; namely freedom from such harassment: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; (1989) 85 ALR 503 at 568, 572.
90 The applicant submits that for the purposes of s 94 of the SD Act (victimisation) verbal abuse can be considered a detriment: Penhall-Jones v State of New South Wales (No 2) [2006] FMCA 927 at [125]. Further, the applicant need not establish that her complaint about Mr Heath’s conduct was the sole reason for that abuse. It is sufficient that it be a substantial and operative factor and requires rational explanation, at least in part, as to why the abuse took place: Penhall-Jones v New South Wales [2007] FCA 925.
91 The applicant submits that for the purposes of s 15 of the DD Act, it is not necessary for a discriminator to act with a discriminatory motive. It is sufficient that there be a causal connection between the disability (here, mental illness including depression) and any less favourable treatment received by the aggrieved person: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359; Travers v New South Wales [2001] FMCA 18; (2001) 163 FLR 99.
Respondents’ submissions
92 St Ives submits that for the purposes of s 28A (sexual harassment) the test for ‘unwelcome conduct’ is subjective: Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 at [707]; Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; (2020) 277 FCR 511 at [23]. In order to establish that the conduct was unwelcome the applicant must prove that the conduct was unsolicited and found by the applicant to be undesirable or offensive: Aldridge v Booth.
93 St Ives submits that the applicant must also prove that in the relevant circumstances, a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by the conduct: s 28A of the SD Act. The test in that regard is objective: Hughes v Hill at [24]-[25]. The relevant circumstances to be taken into account in determining the third limb are set out non-exhaustively in s 28A(1A) of the SD Act. Relevantly, those circumstances include the relationship between the person harassed and the person who made the advance or request or engaged in the conduct.
94 Accepting that it is reasonably arguable that the alleged conduct of Mr Heath involved a sexual advance, a request for sexual favours or other conduct of a sexual nature, St Ives submits that the contemporaneous documentary evidence establishes that the applicant did not subjectively consider Mr Heath's conduct to be unwelcome. That contemporaneous evidence of the applicant’s subjective state of mind is comprised of:
(a) documents created by the applicant between 1 August 2014 and 15 September 2015;
(b) text messages exchanges between the applicant and Mr Heath;
(c) text messages exchanged between the applicant and Ms Rowling; and
(d) text messages exchanged between the applicant and Ms De Ronchi.
95 St Ives submits that the text messages exchanged between the applicant and Mr Heath demonstrate that the applicant's claim that she had been subjected to unsolicited sexual conduct which she found to be undesirable or offensive is fanciful and misconceived such that it should not be entertained by the Court. The content and general tenor of the text exchanges between the applicant and Mr Heath do not, on the face of them, reveal or suggest that any sexualised conduct of Mr Heath towards the applicant was subjectively unwelcome.
96 In substance, the respondents contend that the applicant’s statements of fact to the effect that Mr Heath’s sexual advances were ‘unwelcome’ is inconsistent with undisputed contemporaneous documents or other statements of the applicant. The respondents submit that the inconsistent documents and statements are contained in text messages exchanged between the applicant and each of Mr Heath, Ms De Ronchi and Ms Rowling and in notes the applicant made. These documents were exhibited to the first affidavit of Ms McKenzie (Exhibit 6.1) and comprise 37 separate exhibits running to over 540 pages. Of these documents, St Ives' written and oral submissions specifically refer to most of these exhibits.
97 St Ives submits that, as the applicant’s allegations of sexual discrimination are founded on the allegations of sexual harassment, the sexual discrimination allegations are also not reasonably arguable.
98 St Ives submits that there are a number of difficulties with the allegations that it is vicariously liable under s 106 for alleged offences of employee respondents under s 94 of the SD Act. St Ives contends that under s 106, St Ives cannot be vicariously liable for offences found in Part IV of the SD Act. The allegations to the effect that Ms De Ronchi and Mr Ross-Adams victimised the applicant do not disclose reasonably arguable allegations of such victimisation.
99 St Ives submits that the statement of claim does not disclose a reasonably arguable allegation of disability discrimination because there is no causal link pleaded between the alleged protected attributes (gender and disability) and the alleged discriminatory conduct: Sklavos v Australian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [42]-[43].
Approach to the evidence on merits
100 I approach consideration of the merits of the application for leave from the stand-point that s 46PO(3A) is a filter. It is intended to remove from consideration by the Court applications where use of the Court’s resources (and the parties’ resources) is disproportionate to the merits of the alleged unlawful discrimination. However, in the exercise of the Court’s discretion to grant leave, it is not generally appropriate to undertake a detailed examination of the merits of the proposed application. Nonetheless, there may be circumstances in which it is appropriate to undertake a close examination of the legal or factual issues the applicant proposes to advance to determine if the allegations are ‘reasonably arguable’.
101 I also approach consideration of the merits of the factual issues the applicant proposes to advance from the perspective that, in general, it is not appropriate for the Court to attempt to resolve conflicts of affidavit evidence on an interlocutory application: Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734; Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; (1968) 118 CLR 618 at 622. Typically, on an interlocutory application, the question of whether it discloses ‘a serious question to be tried’ or a claim or defence has ‘reasonable prospects of success’, is answered on the basis that the statements of fact contained in the affidavit(s) on the application are accepted as true: e.g., Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144 at [91]-[94], [99], [101]-[102]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at [43]-[45]. However, 'this does not mean that [the Court] is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be': e.g., Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341.
Alleged sexual harassment and sexual discrimination
102 In the applicant’s first affidavit (Exhibit 1.1) she refers to some of the text messages and notes exhibited to Ms McKenzie’s first affidavit (Exhibit 6.1) and deposes facts that provide contextual or other explanations of apparent inconsistency between her statements to the effect that Mr Heath’s sexual advances were unwelcome and the contents of her text messages or her notes.
103 The applicant’s allegations of sexual harassment centre on an event that took place on the evening of 16 and 17 January 2015. After that event there were a number of further occasions in which sexual harassment is alleged to have occurred between January and October 2015.
104 During her employment with St Ives the applicant reported directly to Mr Heath. She also reported to Ms De Ronchi. Other members of the executive management team of St Ives during the period of the applicant's employment were Mr Ross-Adams and Ms Rowling. Ms Rowling was marketing manager for retirement villages.
105 The applicant deposes that between April 2014 and 16 January 2015 she had a series of interactions with Mr Heath during which Mr Heath expressed his affection and romantic interest in the applicant. The applicant then describes an event on 16 January 2015 that took place at the applicant's home after a marketing function that Mr Heath and the applicant had attended at a restaurant. The applicant describes interactions with Mr Heath during the function, including the consumption of alcohol, and interactions between Mr Heath and the applicant that again suggested Mr Heath had affection and romantic interest in the applicant. The incident at the applicant's home took place while her husband, from whom she was estranged, was asleep upstairs. The applicant alleges that Mr Heath grabbed her, forcibly kissed her and attempted to put his hand up her dress. The applicant resisted Mr Heath's advances and told him no, after which Mr Heath explained that he wished to expand his relationship with her from a working relationship to a romantic relationship. Mr Heath again kissed the applicant and she again broke away from him saying words to the effect of no. Mr Heath continued to kiss her and each time he grabbed her to kiss her, she would freeze. He also groped various parts of her body. The applicant pulled away from him, stood up and said 'you have to leave immediately we can't'. After a short time, Mr Heath then left.
106 The applicant deposes that the sexual advances and comments that Mr Heath made had left her extremely shocked, confused, distraught, stressed and anguished. She said 'I didn't want them and I did not think I had looked for them. I don't think I ever flirted with him in the past.' She said Mr Heath's action left her feeling violated, disturbed about his adultery and concerned that her husband had heard what had happened between them. She said that within hours of Mr Heath leaving her home, she began to physically shake in the body, curled up in a ball on the floor, repeatedly vomited severely, suffered from extreme diarrhoea, ruminated and called out for her deceased sister, sent distressed text messages to her friend, Mr Ronald Woods, and suffered severe stomach cramps.
107 After Mr Heath left the applicant's home, he sent her a text message 'awesome day / night X' at 1:06 am on 17 January 2015. After about eight minutes, the applicant replied 'Way (& very pleasantly) beyond my expectations. Thank you x'. There followed a series of exchanges. The effect of these text messages suggests that the applicant was not shocked, confused, distraught, stressed and anguished, had not felt violated or disturbed about Mr Heath's adultery or concerned that her husband had heard what had happened between them. Nor does the text exchange suggest that Mr Heath's actions were unwanted sexual advances. However, the applicant deposes by way of explanation that:
I was worried about the effect of my rejection of Mr Heath's unwanted sexual advances on my job as he had demonstrated retaliatory behaviour before, ... and I did not know how to respond to his text message. I eventually replied with a text message to placate him.
108 On 6 April 2015, about two months later, the applicant made notes of the events on 16/17 January 2015. Those notes were exhibited to her affidavit. The notes are not entirely coherent and appear in the form of something like a stream of consciousness. Taken as a whole, it is difficult to decipher the extent to which, if at all, these reveal that Mr Heath's advances on 16 January 2015 were or were not unwanted at the time those advances were made.
109 The applicant deposes that she was admitted to hospital on 17 January 2015. The applicant said that was as a consequence of her repeatedly vomiting. She was discharged later on 17 January 2015.
110 On 18 January 2015, there was another exchange of text messages between the applicant and Mr Heath. Again, none of those messages suggest that, from the applicant's perspective, his conduct at the applicant's home was unwanted. The general tone of the exchanges is consistent with flirtation between the applicant and Mr Heath.
111 On 21 January 2015, there was, again, an exchange of text messages between the applicant and Mr Heath. The applicant described a text she sent to Mr Heath as an inquiry as to whether they were going to talk about the events of 16 January 2015 at a work meeting that was to take place at Mr Heath's home on 23 January 2015. The text said 'have been thinking about that potentially exciting role expansion we discussed Friday. Do you want to discuss on Fri morn@ yr house, or separate catch up?' Mr Heath replied 'I think separate is best hey otherwise we might not talk about work at all!!! Ok with you?'
112 The applicant deposes that when she returned to work the following week, she made a complaint about the 16 January 2015 event to Ms De Ronchi and Ms Rowling.
113 The applicant deposes that she met with Mr Heath on 3 February 2015 to discuss the events of 16 January 2015 and his desire for a romantic relationship with her. Various matters were discussed at the meeting and at the conclusion of it, she said they had agreed not to allow anything to develop between them outside working relationship. Notwithstanding that, after the meeting Mr Heath continued to send text messages to the applicant. Including an exchange of text messages between Mr Heath and the applicant on 3 February 2015.
114 From that exchange it is not obvious that there was a decision made to the effect that Mr Heath would not pursue a romantic relationships with the applicant. Nor do the applicant's responses suggest that Mr Heath so doing was not welcome. Nonetheless, the applicant explains her responses as follows:
I did not respond to these messages immediately as I suffered another panic attack due to the text messages. I eventually sent a response as I was fearful of Mr Heath's reaction or of losing my job if I did not send a text message.
115 The applicant deposes to another incident on 10 February 2015 in which she described three scenarios in three boxes to Mr Heath being:
(a) Box 1 for a purely work relationship;
(b) Box 2 for a 'special' friendly working relationship; and
(c) Box 3 for a romantic relationship, which was where he was during the January events.
116 Box 2 involved the applicant and Mr Heath being in a working relationship which would lead to a romantic relationship after waiting a year for Mr Heath's daughter to finish school. The applicant informed Mr Heath that she thought he was after Box 2, he said 'Yes, but I'm still going to call you 'hot''. The applicant replied that he could not say that. During the discussion, Mr Heath again asked for regular personal contact with the applicant. The applicant did not offer much in response because she was worried about losing her job.
117 The applicant describes another incident whereby Mr Heath grabbed her right hand and said that she had to be affectionate with him as he loved affection. She said she was both scared and frustrated as she had informed him earlier that he could not call her 'hot', but seemed to think that holding her hand without her consent and demanding her affection was acceptable. Later that day the applicant sent Mr Heath a text message to confirm the substance of what had been said and that Box 3 was not an option. The text said 'Acknowledging Box 3 is closing/closed - have 2 be honest & say best part of day was car moment after ...'
118 There are a number of other texts messages of a personal nature between the applicant and Mr Heath during February 2015. The applicant said that she had a panic attack on 11 February 2015 over her attempts to tell Mr Heath that she was not interested in him romantically. She also requested a day of leave as she did not want to go into the office to face him. Again, the tone of the text exchanges on 11 February 2015 does not suggest that Mr Heath and the applicant were engaged only in a working a relationship. After Mr Heath responded that the applicant could have annual leave, she replied 'Thank you! In return, I will take responsibility for picking restaurant. Fair deal?'
119 The applicant describes an incident on 16 February 2015 where she raised the January events with Mr Heath and she said that she was worried it would affect their working relationship. She indicated that she was angry with him. As she went to leave his office at the end of the meeting he insisted that she hug him and he came towards her to embrace her. She did not know what to do and froze which allowed Mr Heath to put his arms around her. She said the contact was unwelcome and she left his office in silence.
120 Later that day she sent a text message to Mr Heath 'You seriously have the softest hands! From - Not angry anymore :)'. The applicant explains that she was worried and stressed that she had upset Mr Heath because she was not interested and he might 'hit back' at her so she sent him that text message.
121 The applicant deposes that following these incidents, she continued to receive personal inappropriate text messages from Mr Heath and these were often on weekends and late at night. The messages were annexed as an exhibit to her affidavit.
122 Between 27 April 2015 and 22 June 2015, the applicant was on annual leave. She had informed Mr Heath that part of the reason she took leave was because of his actions. During her annual leave, Mr Heath attended her home on 8 June 2015. The applicant deposes facts to the effect that during that meeting Mr Heath professed his love for her. She indicated that she was not interested romantically in him. He, again, attempted to touch her. She pulled back violently, shouting no and they resolved that they would be friends and Mr Heath promised not to terminate her employment. Again, there was an exchange of text messages between the applicant and Mr Heath on 9 June 2015, the tone of which was not consistent with the applicant's evidence of the meeting on 8 June 2015.
123 On 10 June 2015, the applicant sent Mr Heath a series of 60 text messages between 3:58 am and 10:39 am, none of which were answered by Mr Heath until 8:19 am. The applicant explains that:
On 10 June 2015, I began to worry about the look Mr Heath gave me at the end of our meeting on 8 June 2015 and if it would have any negative impact on my job. I also thought that the situation between Mr Heath and I would never come to an end and I did not know how to deal with the situation. I send him a long string of text messages early that morning in an effort to try and finally put an end to his feelings of romance between us without causing any hurt to his feelings and risking the safety of my job.
124 On 15 June 2015, while still on annual leave, the applicant had another meeting with Mr Heath at her house to which she says she reluctantly agreed. The applicant says that she again said there could not be any romantic relationship between them. After that meeting with Mr Heath, the applicant had an exchange of text messages with Ms De Ronchi. The tone and contents of those messages do not suggest that the applicant was uninterested in a romantic relationship with Mr Heath.
125 On 19 June 2015, the applicant and Mr Heath had another exchange of text messages that suggests that there may have been a consensual romantic relationship of some kind between Mr Heath and the applicant. The applicant deposes to facts that sought to place that message into context and that there had been a suspicion of 'an inappropriate relationship between Mr Heath and '[the applicant]'. The applicant deposes that Mr Heath's unwanted behaviour towards her continued until sometime in July 2015 when she noticed a sudden significant change in attitude and behaviour towards her.
126 In addition to the text messages and notes to which the applicant refers in her first affidavit, St Ives identified approximately 280 text messages and 33 notes in its written and oral submissions that it submits are inconsistent with the applicant’s assertion that Mr Heath’s sexual advances towards her were unwelcome. It is unnecessary to make reference to all these documents. They are of a similar nature to the documents to which the applicant has referred. These documents to greater or lesser degrees are inconsistent with the applicant’s statements to the effect that Mr Heath’s sexual advances were not welcome. However, the applicant’s explanations for her text messages to Mr Heath (fear or reprisals) extend to all her communications with him. The applicant’s notes to which St Ives has referred are largely not coherent and are ambiguous.
127 St Ives has also identified text messages between the applicant and Ms De Ronchi and the applicant and Ms Rowling that suggest that Mr Heath’s alleged sexual advances were subjectively welcome and not unwelcome. Again, some of these messages are referred to and explained in the applicant’s first affidavit. For example, the applicant deposes to facts that included exhibiting an exchange of text messages between Ms De Ronchi and the applicant on 20 January 2015. The text exchange relevantly was as follows:
(1) The applicant sent a text message to Ms De Ronchi: 'The potential role expansion [Mr Heath] suggested is both exciting, scary and somewhat freaken me out But lots of time to consider!'
(2) Ms De Ronchi responded: 'Don't freak out lady I am in your corner! As long as u want what is on offer (boy wise) and u not feeling pressured all is good u both deserve happiness! We could do dinners n wine!'
128 The applicant explains that she used the term 'role expansion' as code for Mr Heath's desire to pursue a romantic relationship with her. The applicant provided some other commentary on the contents of the text messages and their meaning that is not strictly admissible as evidence. Whatever the subject matter of the text exchange, it does not indicate that the applicant found Mr Heath’s conduct unwanted or that she was reporting an allegation of unlawful sexual harassment to Ms De Ronchi.
129 As to the contents of the notes the applicant evidently created and the exchanges between the applicant and each of Ms De Ronchi and Ms Rowling, these are largely what may be considered prior statements of the applicant relating to the events of January, February and June 2015. These are, of course, hearsay statements or, in the language of the Evidence Act 1995 (Cth), previous representations. The admissibility of previous representations at a trial is, of course, subject to specific rules of evidence. Generally, evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: s 59 of the Evidence Act. An exception is an admission against interest: s 87 of the Evidence Act. There are also special rules around cross-examining a person about a previous representation: s 44 of the Evidence Act. The status and admissibility of the applicant’s previous representations in her notes and text exchanges are matters better left to determination at a trial where the tender of them would be in accordance with the provisions of the Evidence Act. In the setting of a trial the credibility of the applicant’s evidence-in-chief and its consistency or otherwise with previous representations may be tested and the applicant’s explanations assessed. These are not matters that lend themselves to easy or just resolution on an interlocutory application determined on untested and contested affidavit evidence.
130 Further, having regard to the abbreviated nature of the communications in the text messages, the explanations the applicant has given and the incoherent ‘stream of consciousness’ contents of the applicant’s notes, these documents are open to interpretation. I do not regard them as presenting a consistent and ‘undisputed’ and contemporaneous record of prior statements (or previous representations) of the applicant that are unequivocally inconsistent with the facts to which she deposes in her first affidavit. To the extent that the documents are evidently inconsistent with the facts the applicant deposes, the applicant’s explanations given in her affidavit are not inherently improbable or implausible. While the text messages and notes provide reason to doubt the veracity of the applicant’s statements of fact, it is not possible to resolve that doubt without hearing the applicant’s oral evidence and explanations under cross-examination. If the evidence were to remain as it is, a court could accept the applicant’s explanations and reach the conclusion that Mr Heath made unwelcome sexual advances or engaged in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the applicant would be offended, humiliated or intimidated. There is a serious question to be tried. The applicant’s allegations are reasonably arguable and not fanciful.
131 It follows that, in my view, the evidence is capable of supporting the matters pleaded in paras 8(d)(i), 14-25 and 44 of the statement of claim to the effect that Mr Heath’s conduct was unlawful sexual harassment contrary to s 28B of the SD Act. Further, that St Ives is vicariously liable for that conduct. Likewise, the evidence is also capable of supporting the matters pleaded in paras 8(d)(i), 32, 33(a), 34, 35(a), 36, 37(a) to the effect that Mr Heath’s conduct was unlawful sexual discrimination and, through him, St Ives, as the employer and body corporate, acted contrary to s 14 of the SD Act. It was not contended that Mr Heath could not independently, through s 105 of the SD Act or otherwise, contravene s 14 of the SD Act because he was not the applicant’s employer. Therefore, for the purposes of the leave application, I will assume, without deciding, that the facts also disclose reasonably arguable allegations of sexual discrimination by Mr Heath contrary to s 14 of the SD Act.
Alleged victimisation and disability discrimination
132 Paragraphs 32, 33(b), 33(c) 34, 35(b), 35(c) 36, 37(b) and 37(c) of the statement of claim allege that Mr Heath’s conduct was unlawful victimisation contrary to s 94 of the SD Act and (or) alternatively unlawful disability discrimination contrary to s 15 of the DD Act. There is force in St Ives’ submission to the effect that the apparent causal connection between the applicant’s gender and (or) mental illness and the discriminatory conduct is not pleaded so as to disclose a reasonably arguable claim for disability discrimination under s 15 of the DD Act. Similarly, there is an absence of an obvious causal connection between the alleged detriment and the allegations to the effect that applicant had alleged (to other St Ives’ employees) that Mr Heath had done an unlawful act so as to plead a reasonably arguable claim of unlawful victimisation contrary to s 94 of the SD Act. However, for the purposes of an application for leave and having regard to the other allegations of sexual harassment and sexual discrimination, I do not consider that inadequate pleading of causation is a sufficient reason to refuse the applicant leave to allege unlawful discrimination of these kinds.
133 Paragraphs 40-42 plead that Mr Heath’s conduct in connection with termination of the applicant’s employment was unlawful victimisation contrary to s 94 of the SD Act. Although these allegations also have some deficiency in the form of the pleading, for similar reasons to the other allegations of his unlawful victimisation, I am not satisfied that the substance of the allegation (unlawful victimisation in connection with termination of the applicant’s employment) is not reasonably arguable.
134 St Ives’ submission to the effect that it cannot be vicariously liable for an offence under s 94 (which is in Part IV of the SD Act) under s 106 of SD Act (which applies to unlawful acts under Part II, Div 1, 2 or 3) also appears to have significant force. However, it may remain arguable that St Ives is liable in accordance with general principles of attribution of conduct of agents to a body corporate as an act of the body corporate. These principles stand outside concepts of a principal’s liability for acts of its agents or for vicarious liability for acts of an employee or agent. Without full argument on that question, I am not prepared to conclude that corporate liability of an employer for the acts of an employee in contravention of s 94 is not reasonable arguable.
135 Paragraphs 38 and 39 of the statement of claim plead allegations against Ms De Ronchi. Paragraphs 40-42 of the statement of claim also plead allegations against Mr Ross-Adams. As these were subject to the suppression and non-publication orders and leave to make an application against Ms De Ronchi will be refused, I will not set out the contents of these allegations. The merits (or lack thereof) of these allegations are addressed later in these reasons.
Delay
Applicant’s submissions
136 The applicant submits that the 12 month period in which to file a complaint with the Commission is not a time limit. It merely provides a discretionary basis on which the Commission may terminate a complaint. Delay is but one factor to be taken into account when considering an application pursuant to s 46PO, the significance of which will depend on the circumstances of the case: Matthews v Markos [2019] FCA 1827 at [91].
137 The applicant submits that there is evidence that the delay was not a deliberate and conscious or as a result of her carelessness or mere oversight, but as a consequence of her mental health. The applicant contends that because of her mental health she was incapable of lodging the complaint within the 12 months. Further, St Ives, Mr Heath and the other employee respondents have been on notice of the applicant’s allegations since November 2015 when she first raised allegations about the circumstances of her employment and termination. She has attempted to resolve the subject matter of her allegations informally during the period of delay. The provision of such notice diminishes the force of the respondent’s submissions to the effect that they are prejudiced, in a general sense, by the applicant’s delay.
Respondents’ submissions
138 St Ives submits that the applicant has not provided an adequate explanation for her delay in making a complaint to the Commission. St Ives submits that Dr Blumberg’s evidence was so undermined during his cross-examination that, in effect, there is no explanation for the applicant’s delay. It submits that the state of the applicant's mental health provides no explanation for the delay, as the effect of Dr Blumberg’s evidence in his cross-examination was that the applicant could have made a complaint to the Commission at any time between October 2015 and January 2020.
139 St Ives submits that the policy of AHRC Act favours ensuring that allegations of unlawful discrimination are made promptly. Further, delay may justify the refusal of leave even if the allegations sough to be advanced are reasonably arguable: Budini at [58]-[59].
140 Relying on Brisbane South Regional Health Authority at 551 (McHugh J), St Ives submits, in substance, that a further policy behind ‘time limitations’ is a perception that ‘where there is delay the whole quality of justice deteriorates’. There is general prejudice to respondents to delayed complaints of unlawful discrimination. Such general prejudice may be insidious and unable to be positively proved. Concepts such as abuse of process and general prejudice resulting from delay inform the exercise of the discretion under s 46PO(3A): Rossi at [25]-[26] (Gleeson J).
141 St Ives further submits that statutory time limits are not to be ignored: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 at 348-350 (Wilcox J). There is significant public interest in the timely lodgement of discrimination complaints, in order that any unlawful discrimination be addressed promptly and fairly (not only fairly for the complainant, but for the respondents to the complaint who may suffer prejudice in attempting to defend a stale claim). In addition, the Court has a statutory (Federal Court Act ss 37M, 37N and 37P) and jurisprudential mandate (UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 at [38]-[43] (Kiefel CJ, Bell and Keane JJ)) to exercise its discretion in a way that preserves public faith in the administration of justice.
142 St Ives submits that it would be prejudiced in its investigation into the causes of the applicant’s mental illness and the events and circumstances that have affected that illness.
143 Mr Heath submits that he was not notified of the applicant’s complaint to the Commission until April 2020. Ms De Ronchi and Mr Ross-Adams submit they were not notified until they were served with the applicant’s originating process in these proceedings. The employee respondents also submit, for largely the same reasons as St Ives, that the applicant’s explanation for her delay in making the complaint to the Commission is inadequate.
144 The employee respondents submit that there is a lack of contemporaneous evidence in relation to the applicant’s allegations: Nandutu v University of Sydney [2019] FCCA 2754. The delay in the bringing of this complaint causes an obvious forensic disadvantage: memories fade, records are harder to find, alibis become difficult, witnesses are harder to 'track down' and the capacity for a respondent to defend complaints of this type are significantly more difficult where there has been substantial delay.
145 Mr Heath submits that the prejudice caused by the delay to him is particularly acute given he ceased employment with St Ives on 30 September 2016. As a result, he has not had access to any of his records held by St Ives since that time.
146 The employee respondents submit that their ability to receive a fair trial and properly respond to the allegations against them has been severely compromised by reason of the applicant’s delay. It would be palpably unjust to require the respondents to address the main issues that would be in dispute in this case, so long after the event: Rossi at [122]. This prejudices the ability of the respondents to defend the proceedings: Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 at [67]. The factors considered in that case are valid and applicable here. Namely:
(a) the extent of the delay, not merely in making the complaint to the Commission but in the later notification to the respondents of the claims (six years);
(b) the prejudice caused to the respondents by reason of that delay, being a prejudice which is not met by the documentary evidence; and
(c) the absence of any adequate explanation for the delay.
Medical evidence relating to delay
147 The applicant was referred to Dr Blumberg by her general practitioner, Dr Shane Morley on 1 February 2016 for an opinion and management of a psychiatric condition. Dr Blumberg's initial working diagnosis was that the applicant suffered a major depressive disorder with anxious distress. Dr Morley's initial referral letter on 1 February 2016 highlighted that the applicant's employment was terminated in October 2015 causing 'a severe meltdown for [the applicant]'. Dr Morley stated that the applicant 'became extremely depressed and anxious after the termination, shut the world out and lost all enjoyment of life'. Dr Blumberg continued to monitor the applicant's mental state after his consultation with her in February 2016, made adjustments to her pharmacological regime and performed regular risk assessments and provided appropriate psychological support and psycho-education.
148 After a consultation on 21 January 2020, Dr Blumberg is of the opinion that the applicant's symptoms fulfilled the criteria for a comorbid post-traumatic stress disorder as a result of the 'workplace stress' and trauma to which she was subjected. Dr Blumberg opines:
[The applicant] was dealing with a complex Workers' Compensation claim as well as her medico-legal claim with regards to alleged breaches, workplace harassment, bullying and intimidation in her work environment. I was of the opinion that the stressors of these claims were perpetuating her depressive symptomatology.
149 Dr Blumberg's diagnosis is based on the internationally recognised diagnostic system of the American Psychiatry Association, known as the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5). Dr Blumberg expresses the opinion that according to the DSM-5, the applicant fulfils the diagnosis of a major depressive disorder with anxious distress and comorbid post-traumatic stress disorder.
150 Dr Blumberg also expresses the opinion that the applicant:
… has required an extended period of time from the commencement of the psychological and physical harm inflicted on her to date where she could properly instruct her solicitors to commence making an official complaint with the Commission on 5 January 2020 due to the difficulties she has had in addressing and stabilising her mental health conditions, which have had a poor response to pharmacological and psychological treatment over the past few years.
151 Dr Blumberg opines that despite certain pharmacological treatments and psychological interventions, her symptoms have continued to persist and he opines:
… this is the reason [the applicant] has required an extended period of time from the commencement of the psychological and physical harm inflicted on her to the date where she could properly instruct her solicitors to commence making an official complaint with the [Commission] on 5 January 2020.
152 Dr Blumberg expresses a similar opinion in his report of 14 July 2021:
There were periods between June 2016 and 2018 where there was slight improvement in [the applicant's] mental state and functioning. It was during these periods that [the applicant] was able to focus and address her other legal matter involving her Workers' Compensation proceedings.
I cannot explain that while during this period [the applicant] was able to participate in instructing her legal team with regards to her Workers' Compensation proceedings, she was unable to properly instruct her solicitors to commence making an official complaint with the [Commission].
153 In a report dated 14 June 2021, Dr Blumberg opines that the applicant has sufficient mental capacity to instruct Bailiwick Legal in relation to court proceedings. Dr Blumberg expresses the opinion that if the applicant has to sit in the same room as Mr Heath, she could be 're-triggered' and her mental state could decompensate. He also indicates that he has strongly advised the applicant to appoint a litigation guardian due to the stressors of being cross-examined which could trigger her past traumatic stress symptoms.
154 In a report of 1 February 2022, Dr Blumberg expresses an opinion that if she is placed in a position where she becomes overwhelmed or in a situation where she is re-triggered, her anxiety levels could escalate and she possibly could experience difficulties with decision-making.
155 The report of Dr Mander of 2 March 2017 included an opinion that the applicant presented with, at least, a major depressive illness that might be psychotic in nature. That is consistent with Dr Blumberg's initial diagnosis in February 2016.
156 Dr Blumberg was cross-examined primarily, it appears, for the purpose of undermining his opinion that the applicant required an extended period of time from the commencement of the alleged psychological and physical harm inflicted on her to the date where she could properly instruct her solicitors to commence making an official complaint with the Commission in January 2020. Part of the cross-examination was also directed to the self-evident proposition that if the history that the applicant had given to Dr Blumberg concerning the alleged sexual harassment by Mr Heath was inaccurate, it would undermine the opinions Dr Blumberg has expressed. Dr Blumberg candidly accepted that to be the case with respect to his diagnosis of post-traumatic stress disorder. However, he indicates that it would not affect his diagnosis that the applicant suffered a major depressive illness.
157 As to her ability to instruct solicitors, Dr Blumberg's evidence is to the effect that he is surprised that the applicant had the wherewithal, psychiatrically, to fill out a Workers' Compensation claim and have her lawyers lodge it with WorkCover. Dr Blumberg qualifies his surprise by saying:
I mean, she was disorganised, very stressed at appointments and I would imagine during this period of time she did manage to submit this workers' compensation claim. Yes'.
So based on your findings as to her psychiatric health, would you say that you can’t explain why she would have been able to fill it out, assuming that’s what she has done, sign it and have her solicitors lodge it on her instructions? … I – I am surprised but I would – I would say she possibly – she obviously did get legal advice with regards to her situation and then made a decision to put in a workers’ compensation claim.
158 Dr Blumberg also accepts that the applicant could have made the decision earlier to make a complaint to the Commission. He accepts that she could have made that decision on legal advice back when the notice of dispute was drafted in June 2016, just as she had made a decision in relation to a Workers' Compensation claim. Dr Blumberg accepts that he was aware that the applicant was receiving advice from Bailiwick Legal and Bradley Bayly Legal and at no time during the period February 2016 to January 2020 did he advise them that she did not have capacity to instruct them in the sense that it was necessary to have a guardian appointed by the State Administrative Tribunal.
159 In my view, there are two aspects to the provision of instructions to a solicitor to commence proceedings. First, there is the ability to provide sufficient instructions for the solicitors to be able to formulate a claim and lodge it. Second, there is the ability to sustain the instructions throughout the legal proceedings. The cross-examination of Dr Blumberg was directed to the first and not the second aspect of the applicant's ability to instruct her solicitors.
160 In Dr Blumberg's report of 14 July 2021, he says:
[The applicant] continued to experience mixed depressive and anxiety and post-traumatic stress symptoms, despite being appropriately treated with pharmacological and extensive psychological intervention. Her symptoms continued to persist during this period unabated and to a significant degree. This in my opinion is the plausible explanation for her requiring an extended period of time from the commencement of the psychological harm inflicted on her to the date where she could properly instruct her solicitors to commence making an official complaint with the [Commission] on 5 January 2020. [The applicant] was struggling stabilising her mental health during this period of time. This in my opinion contributed to her not making an official complaint with the [Commission] during this time.
161 In my view, the cross-examination of Dr Blumberg substantially leaves his opinions intact. There was no exploration of what Dr Blumberg means by ‘properly instruct’ or the effect, if any, that the applicant’s struggle to stabilise her mental health would have had on her ability to sustain instructions throughout legal proceedings. That the applicant could have instructed her solicitors to commence making an official complaint in the sense that she had the ability to provide instructions to do so does not detract from his opinion that her psychiatric condition contributed to her failure to do so. And that is so even if she did have the ability and the wherewithal to make and maintain a claim for Workers' Compensation at the same time. Dr Blumberg’s expression of surprise and qualification tends to reinforce his opinion rather than detract from it. That is, he is surprised, given the applicant’s mental health, that she had the ability to instruct solicitor’s in relation to the Workers’ Compensation proceedings.
162 There was no attack on Dr Blumberg's opinion that the applicant suffers a major depressive illness. Nor that her symptoms have not responded to pharmacological or other treatment.
163 In the applicant's second affidavit (Exhibit 1.2) she deposes to her symptoms. These include difficulty getting out of bed and convalescing for most, if not all, of a day as well as many other symptoms that may, collectively, be described as a significant lack of motivation. She deposes that she is unable to complete simple tasks, such as paying bills or even completing one simple task per day. She deposes to an inability to groom herself and to agoraphobia. She deposes to difficulty giving instructions to her lawyers during telephone conversations.
164 As to the Workers' Compensation claim, she deposes to facts of exhaustion and upset during that process and expressed that: 'sometimes [she] just couldn’t face them or the process' in reference to the lawyers and their correspondence. She said she was unable to articulate details of workplace traumas to the lawyers.
165 As to the discrimination claims, she deposes to providing instructions to her lawyers to attempt to settle her claims. She said during that time, she became repeatedly ill before and after attending sessions with her lawyers, doctors or therapists. She deposes to the difficulty she had in participating and assisting her lawyers with the preparation of her submission to the Commission.
Other evidence relating to delay
166 As to the decision to commence the complaint in the Commission, the applicant deposes:
In 2019 I remember that at Minter Ellison's request, we provided them a small but relevant selection of evidence supporting my claims. They then requested all evidence, requiring us to proceed with my case through the Federal Court system. This required first going through the [Commission].
167 Consistently with that statement, the applicant’s solicitors made a submission on her behalf to the Commission. It that submission, she said:
(a) In January 2019, on a request from St Ives, St Ives was provided with a small yet relevant sample of the evidence in the applicant's possession.
(b) In March 2019, St Ives responded requesting 'complete evidence' of the applicant's claims and they would not be prepared to alter its position with respect to the settlement until such complete evidence was provided. This response left the applicant with no alternative but to pursue her claims in a court. A necessary step to that process was to lodge a complaint in the Commission, which was done on or about 7 January 2020.
168 More details of the communications between the applicant's solicitors and St Ives' solicitors before the applicant made her complaint to the Commission are contained in the second affidavit of Ms Lloyd (Exhibit 4.2). These communications are to the following effect:
(1) On 19 November 2015, Bailiwick Legal wrote to St Ives and put it on notice that the applicant intended to file a claim for breach of the general protection provisions under the FW Act. St Ives' then solicitors, Allion Legal, responded by letters dated 12 November 2015 and 24 November 2015. There was further correspondence between Bailiwick Legal and Allion Legal between 8 and 11 December 2015.
(2) On 22 June 2016, Bailiwick Legal sent St Ives a document entitled ‘Notice of Dispute’ and requested conferral between the parties regarding the matters in dispute. In the notice of dispute, the applicant alleged that Mr Heath had made inappropriate physical contact with the applicant at her home on 16/17 January 2015. It indicated that on 20 January 2015 she had reported that behaviour to Ms De Ronchi. The notice of dispute also provided general details of her allegations that she had been denied authorised leave, denied promotion and a general assertion that during her employment with St Ives she was harassed, intimidated, disparaged, victimised and bullied by a number of St Ives staff members including, but not limited to, Mr Heath, Mr Ross-Adams, Ms De Ronchi and Ms Harris. The notice of dispute was said to have been given pursuant to cl 21 of the employment contract and the St Ives Employee Handbook. She alleged that her employment had been unlawfully terminated and that St Ives had discriminated against her unlawfully.
(3) On 27 June 2016, Minter Ellison, St Ives' then solicitors, responded to the effect that they were taking instructions. Thereafter, there was an exchange of communications between July and August 2016 between the parties' solicitors. The evidence does not reveal to what extent, if at all, there was a meeting or conferral of the kind contemplated in the communications between the solicitors for the parties. However, there appears to have been a meeting scheduled for 12 August 2016. In a communication between Bailiwick Legal and Bradley Bayly Legal, solicitors acting for the applicant in the Workers' Compensation proceedings, Mr Brunner indicated that the applicant's employment, common law and statutory claims against St Ives were 'on hold at this stage, pending the progress and possible resolution of [the applicant's] workers' compensation claim.' Thereafter, there were further communications between the applicant's solicitors regarding the Workers' Compensation claim and resolution of it.
(4) On 22 December 2017, Bailiwick Legal wrote to Minter Ellison and indicated that the resolution of the Workers' Compensation claim appeared to be imminent and '[a]ccordingly, we are instructed to again seek conferral with your client with a view to resolving all matters pertaining to her employment and the termination of that employment by your client, which includes the issues raised in the notice of dispute provided under our letter of 22 June 2016.' Bailiwick Legal followed up that letter with another letter on 8 January 2018 requesting certain information and documents.
(5) Between January and May 2018, there were various communications between the solicitors for the applicant and St Ives. These appear to have resulted in an agreement to meet for conferral on 28 May 2018. In an email from Mr Brunner to Bradley Bayly Legal, he indicated that there was a meeting with Minter Ellison and that no resolution was reached. However, consideration was being given to a joint meeting of all relevant parties for both the Workers' Compensation and employment matters.
The next steps then appear to have been the provision of documents in January 2019 and the request for all documents in March 2019.
Prejudice to the respondents
169 I accept that as a consequence of the applicant’s delay in making her complaint to the Commission it is inevitable that the respondents’ defences of her allegations will be more difficult. There is likely to be prejudice to them of the insidious kind referred to earlier.
170 In the case of St Ives, that prejudice is diminished because it has been on notice of the nature of most of the applicant’s allegations since, at least, June 2016. Until that time, Mr Heath was the CEO of St Ives. It is inconceivable that he was not made aware of those allegations and involved in providing instructions to St Ives’ legal advisors at or around the time that the applicant first raised the allegations of his unlawful sexual harassment. Therefore, I do not accept his submission to the effect that he has been acutely prejudiced by the delay. The prejudice to Mr Heath is also diminished because of his early notice of the allegations and that, by and large, the allegations concern his conduct of which he has direct knowledge.
171 Ms De Ronchi and Mr Ross-Adams are in a different position. Although allegations against St Ives may have involved their acts, omissions or practices, there is no evidence that they received notice of the applicant’s allegations that they have liability directly to the applicant for unlawful victimisation before she served the originating process in these proceedings. The general prejudice to these two respondents is more marked and offends more obviously the policy of the AHCR Act to ensure allegations of unlawful discrimination are made promptly and not many years after the alleged acts, omissions or practices without notice or warning to the respondents to the complaint.
Conclusions about delay
172 Delay and any explanation for delay in making a complaint to the Commissioner is manifestly a relevant consideration in the exercise of the discretion to grant leave under s 46PO(3A). However, delay, even unexplained delay, is not in and of itself a determinative factor.
173 Any prejudice to respondents to a complaint resulting from delay is an important consideration. In the present case, the respondents were not able to identify any specific prejudice resulting from the delay. As already noted, I accept that the respondents will be affected by general prejudice. St Ives and Mr Heath to a lesser extent and Ms De Ronchi and Mr Ross-Adams to a significant extent. Otherwise, in my view, the respondents have failed to make good the submission that the applicant’s delay is effectively ‘unexplained’.
174 Having regard to the unchallenged evidence that the applicant has suffered and continues to suffer from major depressive illness and her direct evidence of the symptoms from which she suffers, I accept that her illness has affected her ability to instruct her solicitors to advance her allegations of unlawful discrimination in formal legal proceedings. While that illness is not a complete impediment to providing instructions to her solicitors or to maintaining legal proceedings, it renders the effort necessary to sustain legal proceedings more difficult. Therefore, while the applicant could have made a complaint before January 2020, the state of her mental health provides at least a partial explanation for her failure to take that step earlier.
175 It is also evident that St Ives and Mr Heath have had notice of the applicant’s allegations against them, in a general sense, since November 2015 and, in a more specific sense, since June 2016. Although the evidence is limited, the parties appear to have engaged with the dispute resolution mechanism in the applicant’s contract of employment, but conferral between the parties was delayed for reasons that are not completely addressed in the evidence. To the extent that there is evidence, it suggests that there was an intention to resolve the applicant’s Workers’ Compensation claim before her employment claims, but that process was derailed at some time during 2018 or early 2019.
176 It follows that St Ives and Mr Heath have been ‘on notice’ of the substance of the applicant’s allegations more-or-less since November 2015. The applicant’s delay in making a complaint to the Commission is also partly explained by engagement in an informal process by which the parties made some attempts to resolve her claims.
177 The period between the first of the acts, omissions or practices alleged to comprise unlawful discrimination and the complaint is about five years. The period between the last of the acts, omissions or practices and the complaint is about four years and three months. Therefore, by any measure, the applicant’s complaint is between three and four years outside the period prescribed in s 46PH(1)(b) of the AHRC Act. It is a significant delay and it is only partially explained by the applicant’s mental health and pursuit of alternative dispute resolution. However, these matters together with the absence of any specific prejudice to St Ives and Mr Heath diminish the significance of the delay.
178 In the cases of Ms De Ronchi and Mr Ross-Adams, the significance of the delay is more acute. Notice was not given that allegations of unlawful discrimination were made directly against them. Therefore, it cannot be assumed that they have had and taken the opportunity to gather, retain and preserve evidentiary materials relevant to their defences of the allegations now made against them directly.
Leave against St Ives and Mr Heath granted
179 As noted earlier, the applicant’s claims against St Ives and Mr Heath are reasonably arguable and not fanciful. However, it is evident based on the documentary evidence that the applicant’s case will face significant headwinds. As a matter of impression and on the state of the evidence on the application for leave, the applicant’s case against them is not strong.
180 While I take into account the policy of the AHRC Act to ensure that allegations of unlawful discrimination are made promptly, that policy has not been defeated by the applicant’s attempt to resolve her claim by an alternative dispute resolution mechanism. I also take into account that the applicant’s ability to prosecute her allegations with vigour has been impeded by her mental illness. Nonetheless, even allowing for these matters, I do not consider that the applicant has completely and fully explained her delay in making a complaint to the Commission. There is an element of dilatoriness that has had the effect of undermining the policy of the AHRC Act.
181 In my view, the matter is finely balanced. Ultimately, I am persuaded that the applicant should have leave to make applications against St Ives and Mr Heath because it would not be just to preclude the applicant from pursuing allegations that have merit and of which these respondents have had due notice. Section 46PO(3A) is a filter not a road block.
Leave against Ms De Ronchi and Mr Ross-Adams refused
182 As noted earlier, in my view, the Court does not have jurisdiction to grant the applicant leave to make an application against Ms De Ronchi and Mr Ross-Adams alleging unlawful discrimination by them. In any case, I would refuse leave for the applicant to make an application against them for the following reasons.
183 No relief is sought against Ms De Ronchi or Mr Ross-Adams for alleged unlawful discrimination under the DD Act. Relief in the form a declarations is claimed against each of them for alleged contraventions of the SD Act. A declaration is sought that Ms De Ronchi breached ss 28A and 28B through Mr Heath’s alleged conduct and s 105 of the SD Act.
184 The grounds upon which it is alleged, for the purposes of s 105, that Ms De Ronchi ‘permitted’, Mr Heath to do an act that is unlawful under s 28B of the SD Act is of dubious merit. It is doubtful that the pleaded facts, if proved, would support the declaratory relief claimed. To the extent the facts pleaded may disclose a ‘reasonable argument’, I regard the allegations as barely arguable or very weak. The facts deposed in the applicant’s first affidavit do not add to the pleaded allegations. No declaration of that kind is sought against Mr Ross-Adams.
185 Declarations to the effect that Ms De Ronchi and Mr Ross-Adams breached s 94 of the SD Act are also sought. The grounds upon which it is alleged that Ms De Ronchi and (or) Mr Ross-Adams committed any act of victimisation against the applicant are not clear from the statement of claim.
186 In the case of the allegations against Ms De Ronchi, there is no pleaded connection between the alleged ‘detriment’ to which the applicant was subject or threatened to be subject by Ms De Ronchi and the applicant’s complaints about Mr Heath’s alleged conduct. The causal connection is not clarified by the facts to which the applicant deposes in her first affidavit. In the case of Mr Ross-Adams, the facts to which the applicant deposes do not support the pleaded claim against him. The facts appear to relate to Mr Heath with Mr Ross-Adams merely present during Mr Heath’s conduct. Unlike the allegations against Mr Heath and St Ives, I am not prepared to assume that the deficiencies in the pleading are only as to form and can be re-pleaded to overcome these deficiencies. There is insufficient merit in the underlying allegations to make that assumption.
187 The statement of claim and facts to which the applicant deposes do not clearly disclose a reasonable arguable foundation for the declarations sought against Ms De Ronchi and Mr Ross-Adams for breaches of s 94 of the SD Act. To the extent that any foundation is discernible, the basis for the relief sought is very weak.
188 Taking into account the absence of obvious, clear and cogent alleged acts, omissions or practices of unlawful discrimination by Ms De Ronchi and Mr Ross-Adams, the applicant’s substantial delay making complaints to the Commission directly about their conduct, the absence of early notice to them of the allegations made against them directly and the general prejudice to them of the applicant’s delay in making complaints against them, I would refuse the applicant leave to make an application to the Court alleging unlawful discrimination by Ms De Ronchi and Mr Ross-Adams. On balance, I do not consider the interests of justice would be served by permitting these relatively less serious and weak allegations to be litigated so long after the alleged acts, omissions and practices took place.
Conclusion
189 The applicant will be granted leave to apply to the Court alleging unlawful discrimination by St Ives and Mr Heath. The application for leave to apply to the Court alleging unlawful discrimination by Ms De Ronchi, Mr Ross-Adams and Ms Rowling will be refused.
I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Feutrill. |
Associate:
