FEDERAL COURT OF AUSTRALIA

Bishnoi v Star Track Express Pty Ltd [2024] FCA 808

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 20(a), 20(b)(ii), 21(a), 21(b)(iii), 22(a), 23(a), 23(b)(iii), 24(a), 25(a), 25(b)(iii), 26(a), 27(a), 27(b)(iii), 28(a), 33(b), 33(c)(ii), 35(c)(ii), 40(b), 40(c)(ii), 42(c)(ii), 47(b), 47(c)(iii), 49(c)(iii), 54(b), 54(c)(ii), 56(c)(ii), 61(b), 61(c)(iii), 63(c)(iii), 69(b), 69(c)(iii), 71(c)(iv), 76(b), 76(c)(ii), 78(c)(ii), 83(b), 83(c)(iii), 85(c)(iii), 90(b), 90(c)(ii), 92(c)(ii), 97(b), 97(c)(ii), 99(c)(ii) 104(b), 104(c)(ii) 106(c)(ii), 107, 110(b) and 111(b) of the statement of claim dated 16 February 2024 are struck out.

2.    The applicant has leave to file and serve an amended statement of claim that conforms with the reasons for judgment given on 24 July 2024 by 4.00pm on 21 August 2024.

3.    On or before 4:00pm on 7 August 2024, the parties file and serve submissions as to costs of the first respondent’s interlocutory application filed on 18 March 2024, limited to five pages.

4.    Liberty to apply.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

INTRODUCTION

1    The first respondent, Star Track Express Pty Ltd, has applied for summary judgment against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1) of the Federal Court Rules 2011 (Cth). Alternatively, Star Track asks the Court to strike out certain paragraphs of the Statement of Claim under r 16.21 of the Rules.

2    By her Statement of Claim dated 16 February 2024, the applicant, Ms Ananya Bishnoi, alleges that she was unlawfully sexually harassed by the second to fifth respondents (the Individual Respondents) between approximately 23 November 2020 and 6 August 2021 (the Relevant Period).

3    Ms Bishnoi seeks relief against Star Track on two bases:

(a)    vicarious liability for the unlawful acts of sexual harassment alleged against the Individual Respondents by operation of s 106(1)(b) of the Sex Discrimination Act 1984 (Cth); and

(b)    indirect discrimination in employment (or against a contract worker) on the ground of sex, within the meaning of s 5(2) of the Sex Discrimination Act, which denied Ms Bishnoi benefits and subjected her to detriment contrary to ss. 14(2)(b), 14(2)(d), 16(c) or 16(d) of the Sex Discrimination Act.

4    In support of its application, Star Track relied on two affidavits of Ms Alison Freeman, Head of Legal, Group Legal, at Australia Post, affirmed on 18 March 2024 and 22 April 2024.

5    Ms Bishnoi relied on:

(a)    an affidavit of Ms Cassandra Martin, Acting Deputy Managing Lawyer at Victoria Legal Aid, affirmed on 5 April 2024;

(b)    an affidavit of Ms Kiara Wagner, Lawyer at Victoria Legal Aid, affirmed on 28 June 2024.

6    For the reasons set out below, in my view, the application for summary judgment should be dismissed. However, certain paragraphs of the Statement of Claim should be struck out with leave to Ms Bishnoi to re-plead.

LEGAL PRINCIPLES

7    Star Track sought to have the proceeding summarily dismissed under s 31A(2) of the FCA Act and r 26.01(1) of the Rules.

8    The applicable principles are well established and may be summarised as follows:

(a)    A proceeding may be summarily dismissed where the Court is satisfied that the party bringing the proceeding has no reasonable prospect of successfully prosecuting the proceeding: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 131, [22]-[23] (French CJ and Gummow J).

(b)    Section 31A of the FCA Act has lowered the threshold for summary judgment and it is no longer necessary for the case to be shown to be “hopeless” or “bound to fail”. However, the power to dismiss a proceeding summarily should be exercised with caution: Spencer at [22]–[24] (French CJ and Gummow J), [52]–[60] (Hayne, Crennan, Kiefel and Bell JJ); Danthanarayana v Commonwealth of Australia (No 2) [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ); Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [46] (Reeves J); Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [27]-[29] (McKerracher J).

(c)    The determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at [46].

(d)    A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

(e)    Cases involving complex issues of law and fact or mixed issues of law and fact are unlikely to be appropriate for resolution by summary judgment: Spencer at [26], citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at [95] (Lord Hope).

9    In relation to the application to strike out parts of the Statement of Claim, Star Track relied on r 16.21(1) of the Rules.

10    Rule 16.21(1) provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading contains scandalous material; contains frivolous or vexatious material; is evasive or ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or is otherwise an abuse of the process of the Court.

11    In KTC v David [2022] FCAFC 60 at [118] – [125], Wigney J (with whom Anastassiou J agreed as to the principles, [329]) set out the relevant principles as follows:

Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which in summary provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (Vic) (Full Court of the Supreme Court of Victoria, Starke J, with whom Crockett and Beach JJ agreed at [12], 4 September 1984), referred to with approval in Mathews v State of Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491; see also Von Reisner v Commonwealth (2009) 177 FCR 531; [2009] FCAFC 97 at [27].

A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429; [1995] ATPR 41-434; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.

A pleading may be considered to be embarrassing if it suffers from narrative prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 at [80]- [84]. A party cannot be expected to respond to mere context, commentary, “history, narrative material or material of a general evidentiary nature”: Fuller v Toms at [83].

A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd & Steinhardt v Pearce, Neville & Oke Industrial Pty Ltd (1996) 138 ALR 522 at 531.

A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]- [43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236.

If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing”: Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at 323.

Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.

APPLICANT’S ALLEGATIONS OF UNLAWFUL CONDUCT AND VICARIOUS LIABILITY ON THE PART OF STAR TRACK

12    Ms Bishnoi alleges that she was unlawfully sexually harassed by the Individual Respondents during the Relevant Period in the course of delivery work that she and the Individual Respondents performed for Star Track from Star Track’s warehouse. It is noted that Ms Bishnoi does not allege that Star Track by its own conduct engaged in unlawful sexual harassment in contravention of the Sex Discrimination Act.

13    Ms Bishnoi alleges that Star Track is vicariously liable for the unlawful sexual harassment by the Individual Respondents under s 106(1) of the Sex Discrimination Act because the Individual Respondents were employees of Star Track and the alleged contraventions were committed in connection with their employment. In the alternative, Ms Bishnoi alleges that Star Track is vicariously liable for the conduct of the Individual Respondents who were employed by a third party labour hire company because they performed delivery work as Star Track’s agents and the alleged contraventions were committed in connection with their duties as Star Track’s agents: s 106(1) of the Sex Discrimination Act.

14    Ms Bishnoi further alleges that Star Track unlawfully discriminated against her in that Star Track imposed a requirement, condition or practice that an employee (or contract worker) who performed work at or from its warehouse would have to tolerate exposure to harassment of female employees (or contract workers) by male employees (or contract workers). Ms Bishnoi alleges that the requirement, condition or practice had the effect or was likely to have the effect of disadvantaging women and was not reasonable in the circumstances. Ms Bishnoi therefore alleges that Star Track unlawfully discriminated against her on the ground of sex within the meaning of s 5(2) and (3) of the Sex Discrimination Act. Ms Bishnoi alleges the unlawful discrimination denied Ms Bishnoi benefits associated with her employment with Star Track, alternatively with a third party hire company, contrary to ss 14(2)(b) or 16(c) of the Sex Discrimination Act, and subjected her to detriment, contrary to ss 14(2)(d) or 16(d) of the Sex Discrimination Act.

STAR TRACK’S GROUNDS FOR SUMMARY DISMSISSAL AND STRIKE OUT

15    Star Track submitted that Ms Bishnoi’s case against Star Track rests on her being able to prove that Ms Bishnoi and the Individual Respondents were employees of Star Track, which she will not be able to do. Accordingly, Star Track submitted that Ms Bishnoi’s claims have no reasonable prospects of success and should be summarily dismissed or, in the alternative, her claims should be struck out.

16    Star Track’s evidence was directed towards establishing that Star Track had no contractual relationship whatsoever with Ms Bishnoi or any of the Individual Respondents. Star Track’s evidence, it was submitted, established that Ms Bishnoi and the Individual Respondents were each contracted to provide services to independent contractors or outside hire suppliers who, in turn, provided the services of drivers to Star Track.

Vicarious liability for unlawful sexual harassment under the Sex Discrimination Act

17    Section 106 of the Sex Discrimination Act renders a person vicariously liable for unlawful discrimination and sexual harassment committed by an employee or agent unless the person took all reasonable steps to prevent conduct of that kind. It provides:

106    Vicarious liability etc.

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

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

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

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

(2)    Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

18    Star Track submitted that, on Ms Bishnoi's case, it can only be liable for the acts of the Individual Respondents by reference to the test in s 106 of the Sex Discrimination Act. Relying on the principle of statutory interpretation expressum facit cessare tacitum, Star Track submitted that the procedure under the Sex Discrimination Act by which persons are made vicariously liable for the acts of their employees or agents excludes the common law test for vicarious liability, citing by way of support Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 at [372] (Neave JA). Thus, Star Track submitted, it can only be liable for the acts of the Individual Respondents if they were either employees or agents of Star Track. Star Track submitted that Ms Bishnoi and the Individual Respondents were not employees or agents of Star Track and her claim should therefore be summarily dismissed.

19    Star Track submitted that the term “agent” in s 106 of the Sex Discrimination Act must be presumed to have a technical legal meaning and, for that reason, Ms Bishnoi was required to plead material facts showing the Individual Respondents had a species of legal relationship which granted them the authority to act on behalf of Star Track. Star Track submitted the Statement of Claim does not plead material facts showing an agency relationship between the Individual Respondents and Star Track. Furthermore, there was no agency agreement in place between Star Track and the Individual Respondents and therefore there was no reasonable prospect of success of Ms Bishnoi’s claim insofar as it relies on agency.

20    In relation to the term “employment” in s 106 of the Sex Discrimination Act, Star Track submitted that the Statement of Claim pleads a bare assertion of law, namely, that Ms Bishnoi and the Individual Respondents were employees, and should be struck out. Furthermore, to the extent that bare assertion of law is supported by particulars, the particulars refer to and rely on conduct of the kind included in the old ‘control’ test represented by decisions such as Hollis v Vabu [2001] HCA 44; 207 CLR 21. However, Star Track submitted, that line of authority was overturned in Workpac v Rossato [2021] HCA 23; 271 CLR 456 and, more recently, was expressly held to have no application in the federal discrimination jurisdiction, referring to Delpachitra v University of Technology Sydney [2022] FCA 22 at [51] (Besanko J).

21    Star Track submitted that, in this case, the status of the relationship between Star Track, Ms Bishnoi and the Individual Respondents was clear:

(a)    there was no contractual relationship between them whatsoever;

(b)    they were drivers provided to Star Track by third party independent contractors or outside hire suppliers;

and, insofar as Ms Bishnoi’s claims rely on her establishing that Ms Bishnoi and the Individual Respondents were “employees” of Star Track, those claims have no reasonable prospects of success and should be summarily dismissed.

Unlawful discrimination

22    Star Track submitted that Ms Bishnoi’s claim of indirect discrimination in employment on the ground of sex will similarly fail because she was never employed by Star Track.

23    Star Track further submitted that Ms Bishnoi’s claim of indirect discrimination against a ‘contract worker’ is deficient in that it fails to plead material facts concerning the conduct of Star Track which Ms Bishnoi seeks to impugn.

CONSIDERATION

24    Counsel for Ms Bishnoi stated that, at present, Ms Bishnoi relies solely on s 106(1)(b) of the Sex Discrimination Act to seek relief against Star Track for the alleged unlawful sexual harassment by the Individual Respondents. As a result, it is unnecessary to decide whether s 106(1) of the Sex Discrimination Act excludes the common law test for vicarious liability.

25    For s 106(1) to apply, it is necessary for the person alleging an act of unlawful sexual harassment to prove that: first, the unlawful act was done; second, the person who did the unlawful act was an employee or agent; and, third, the unlawful act was done in connection with the employment of the employee or duties of the agent: Von Schoeler v Allen Taylor and Company Ltd and Others (No 2) [2020] FCAFC 13; 273 FCR 189 at [59].

26    For the purposes of this application, the meaning of “agent” and “employment”, and the cognate term “employee”, are relevant.

27    The term “agent” is not defined in the Sex Discrimination Act. Counsel for Ms Bishnoi submitted that the concept of agency is not confined by common law agency. Ms Bishnoi relied on Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108; 293 FCR 330 where O’Bryan J stated at [192] – [193] (Besanko and Lee JJ agreeing, [1] and [2]):

At common law, the core conception of agency is “an authority or capacity in one person to create legal relations between the person occupying the position of principal and third parties”: International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 at 652 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. That core conception has also been stated in broader terms as encompassing the authority to affect legal rights as between the principal and third parties (Petersen v Moloney (1951) 84 CLR 91 at 94 per Dixon, Fullagar and Kitto JJ) and the authority to act on behalf of a principal either generally or in respect of some particular act or matter (Erikson v Carr (1945) 46 SR (NSW) 9 at 12 per Jordan CJ). As explained in G E Dal Pont, Law of Agency (4th Ed, LexisNexis, 2020) at [1.4]:

… agency relationships necessarily involve an agent acting in a representative capacity for the principal, whether for the purpose of creating contractual relations for the principal or to represent the principal in a more restricted ambit. Put another way, if the right by virtue of which the alleged agent acts is an independent right he or she already possessed, then he or she is not an agent; if it is, conversely, by virtue of some authority from another, then he or she is an agent.

In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 (Tonto), Allsop P (with whom Bathurst CJ and Campbell JA agreed) explained (at [177], references omitted):

… Not every independent contractor performing a task for, or for the benefit of, a party will be an agent, and so identified as it, or as representing it, and its interests. Agency is a consensual relationship, generally (if not always) bearing a fiduciary character, in which by its terms A acts on behalf of (and in the interests of) P and with a necessary degree of control requisite for the purpose of the role. Central is the conception of identity or representation of the principal … Examples and contexts may be infinite, and any arrangement must be understood and characterised by reference to its legal terms in context. …

28    Although Counsel for Ms Bishnoi submitted that the Court should reject Star Track’s submission that the term “agent” is presumed to have a legal meaning, the parties were aligned on the need for Ms Bishnoi to establish that Star Track conferred authority on Ms Bishnoi and the Individual Respondents to act as Star Track’s agent. However, in my view, the Statement of Claim does not plead that Star Track conferred authority on Ms Bishnoi and the Individual Respondents to act as Star Track’s agent.

29    Star Track’s evidence included contracts between Star Track and independent contractors or outside hire suppliers by whom, Star Track submitted, the Individual Respondents were engaged to provide services to Star Track. Star Track’s evidence also included a contract between Star Track and a third party hire company, Gurdezi Pty Ltd, which, Star Track submitted, was relevant to the services Ms Bishnoi provided to Star Track. Star Track relied on clauses in those contracts, which contained similar terms, to the effect that the “Contractor” (in each case, the company who was said to have employed persons such as Ms Bishnoi and the Individual Respondents to provide the services) was not the agent of Star Track and had full responsibility for the actions of its employees, sub-contractors and agents.

30    Counsel for Ms Bishnoi also took the Court to the same contracts. Schedule 1 of those contracts sets out the “Scope of Work” and “General duties” to be performed in respect of “Ad hoc Pick-up and Delivery Services”. Counsel for Ms Bishnoi submitted that the contracts, which Ms Bishnoi would rely upon, contemplated representative acts on the part of persons such as Ms Bishnoi and the Individual Respondents and that such persons were in fact performing representative duties on behalf of Star Track. However, the Statement of Claim does not currently plead the terms of the contracts upon which Ms Bishnoi intends to rely.

31    In my view, Ms Bishnoi has established there are sufficient facts upon which she may rely to allege that Ms Bishnoi and the Individual Respondents were the “agents” of Star Track and the factual dispute as to whether Ms Bishnoi and the Individual Respondents were the “agents” of Star Track is a matter which should be resolved at trial. For those reasons, in my view, summary dismissal is not appropriate: Spencer at [25]-[26] (French CJ and Gummow J). However, the Statement of Claim is required to state Ms Bishnoi’s case with sufficient clarity to enable Star Track to know the case that is asserted against it. The Statement of Claim does not plead the acts, facts or matters which Ms Bishnoi intends to rely upon to allege that Star Track conferred authority on Ms Bishnoi and the Individual Respondents to act as Star Track’s agent. Nor does the Statement of Claim plead all of the matters upon which Ms Bishnoi intends to rely to establish agency. For those reasons, the relevant parts of the Statement of Claim should be struck out. However, I consider that the overarching purpose in s 37M of the FCA Act would not be achieved by striking out these parts of the Statement of Claim without a right to re-plead and I would grant leave to re-plead.

32    In relation to the term “employment” in s 106 of the Sex Discrimination Act, that term is defined in s 4 to mean:

employment includes:

(a) part-time and temporary employment;

(b) work under a contract for services; and

(c) work as a Commonwealth employee

33    In Ryan v Commissioner of Police [2022] FCAFC 36; 290 FCR 369 at [103] – [104], the Full Court construed “employment” as it appears in the Disability Discrimination Act 1992 (Cth) and stated:

Neither the language nor the content of the definition of “employment” supports the respondents’ argument that the definition is exhaustive. The word “includes” ordinarily indicates that the definition is not exhaustive and that other matters or things may come within the scope of the word or phrase defined. In YZ Finance, where a provision defined the word “security” to “include” a list of items, and each item fell within the natural meaning of the word, it was held that the list was exhaustive. That is not the present case. The definition of “employment” is consistent with “employee” in s 15 of the DD Act having a meaning that is not confined to a person employed under a contract of service and is inclusive.

Accordingly, the language of s 15(2) of the DD Act is capable of referring to an employee in the sense of a person paid for performing work on a regular basis at the request and direction of another.

34    Counsel for Ms Bishnoi relied on the above passages in Ryan and submitted that it was “strongly arguable” that “employment”, and the cognate term “employee”, in s 106 of the Sex Discrimination Act do not have their legal meaning and the term “employment” may embrace relations and contracts not limited to common law employment. Counsel for Ms Bishnoi further submitted that the plea in the Statement of Claim regarding Ms Bishnoi’s and the Individual Respondent’s “employment” was entirely orthodox, referring to Murphy v Chapple [2022] FCAFC 165 and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting [2022] HCA 1; 275 CLR 165.

35    In Chapple, the Full Court had to determine the nature of an employment relationship and whether Mr Murphy was an employee or independent contractor of Astute. Of relevance was a requirement imposed by the Queensland Building and Construction Commission Act 1991 (Qld) that a building and construction company, such as Astute, employ a supervisor who holds a building licence issued by the Queensland Building and Construction Commission. Mr Murphy held this licence. The primary judge had concluded that Mr Murphy was simultaneously an independent contractor but also an employee with a limited role linked to maintenance of the building licence.

36    Justices Jagot, Banks-Smith and Jackson summarised the relevant principles for establishing the nature of the contractual relationship (at [28]-[29]) as follows:

It is trite that the existence and terms of any contract are for objective, not subjective, determination: for example, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 at [66].

The relevant contractual principles include these stated in Personnel Contracting by Kiefel CJ, Keane and Edelman JJ:

(1)    a contract (not just an employment contract) “may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver”: [42];

(2)    “[t]here is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights”: [44];

(3)    the meaning and effect of a contract must be ascertained at the time it was entered into, unless subsequent conduct casts light on a variation to that contract, citing Connelly v Wells (1994) 55 IR 73 at 74: [46];

(4)    the meaning and effect of the contract, particularly the extent to which the contract itself gives the putative employer the right to control the doing of the work by the putative employee, determines the legal character of the contract as one of employment or not: [53];

(5)    “[u]ncertainty in relation to whether a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance. Especially is this so where the parties have taken legitimate steps to avoid uncertainty in their relationship. The parties’ legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a “label” to describe their relationship which is inconsistent with the rights and duties otherwise set forth. To do so would be to elevate their freedom to a power to alter the operation of statute law to suit themselves or, as is more likely, to suit the interests of the party with the greater bargaining power”: [58];

(6)    where a written contract exists and its validity is not challenged, the ultimate characterisation of a relationship must be concerned with the rights and duties established by that contract, however this does not mean that it is not appropriate in the “characterisation of a relationship as one of employment or of principal and independent contractor”, to consider “the totality of the relationship between the parties” by reference to the various indicia of employment that have been identified in the authorities (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at [24]): [61]; and

(7)    the distinction between an employee and an independent contractor remains “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own” citing Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217: [37].

37    In relation to Counsel for Star Track’s submission that the old ‘control’ test represented by decisions such as Vabu was overturned in Workpac, the facts in Workpac were entirely different to the present case. In Workpac, the terms of the employment relationship were committed comprehensively to a written agreement. It was in that context that the plurality held (at [101]) that Vabu was not relevant in the resolution of a question as to the character of an employment relationship where “there is no reason to doubt the terms of that relationship are committed comprehensively to the written agreement by which the parties have agreed to be bound”: Personnel Contracting at [62]; Delpachitra at [51].

38    In this case, Star Track did not produce a contract between Ms Bishnoi and Gurdezi and it denied any contractual relationship between it and Ms Bisnnoi. Counsel for Ms Bishnoi submitted that there was no written contract between Ms Bishnoi and Gurdezi. Star Track contended that this did not matter because, even on Ms Bishnoi’s case, she had a relationship with Gurdezi which was completely at odds with Star Track’s contracts with the third party independent contractors or outside hire suppliers.

39    Counsel for Ms Bishnoi submitted that payment of wages by a third party is not fatal to the existence of a contract of employment between a worker and putative employer: Damevski v Giudice [2003] FCAFC 252; 133 FCR 438 at [63] (Marshall J with whom Wilcox J agreed). Further, Ms Bishnoi’s case will be that the “employment” arises from Star Track exercising control over the selection of Ms Bishnoi and the Individual Respondents, their recruitment, the manner in which they were directed to perform the delivery work and the procedures and work practices they were obliged to follow.

40    In circumstances where a written contract with Ms Bishnoi has not been produced, this is not a case where the relationship is governed exclusively by a written agreement and the characterisation of the relationship may fall to be determined by reference to the various indicia of employment identified in the authorities: Personnel Contracting at [61].

41    In my view, the dispute as to whether Ms Bishnoi and the Individual Respondents were “employees” of Star Track raises questions of fact and law which should be resolved at trial: Spencer at [26] (French CJ and Gummow J). However, the allegation of employment is a bare allegation supported by lengthy particulars. As stated above, the Statement of Claim is required to state Ms Bishnoi’s case with sufficient clarity to enable Star Track to know the case that is asserted against it. I would therefore strike out the relevant paragraphs of the Statement of Claim containing bare allegations of “employment”. However, in my view, the overarching purpose in s 37M of the FCA Act would not be achieved by striking out these parts of the Statement of Claim without a right to re-plead and I would grant leave to Ms Bishnoi to re-plead.

42    Insofar as Ms Bishnoi’s allegation of indirect discrimination in employment on the ground of sex similarly relies on allegations of “employment”, in my view, that claim should not be summarily dismissed for the reasons set out above.

43    In relation to Ms Bishnoi’s claim concerning indirect discrimination against a ‘contract worker’, Star Track accepts it was a principal. However, it denies the material facts pleaded in respect of the allegations that:

(a)    Star Track imposed a condition or requirement within the meaning of the Sex Discrimination Act;

(b)    Ms Bishnoi was subjected to a disadvantage and the same disadvantage was likely to be suffered by other women;

(c)    Star Track denied or limited Ms Bishnoi’s access to any benefit associated with the work in respect of which the contract with the employer was made within the meaning of s 16(c); and

(d)    Star Track subjected Ms Bishnoi to a detriment within the meaning of s 16(d).

44    Section 16 of the Sex Discrimination Act provides:

16    Discrimination against contract workers

It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)    in the terms or conditions on which the principal allows the contract worker to work;

(b)     by not allowing the contract worker to work or continue to work;

(c)     by denying the contract worker access, or limiting the contract worker’s access, to any benefit associated with the work in respect of which the contract with the employer is made; or

(d)     by subjecting the contract worker to any other detriment.

45    Section 5(2), which sets out the test for indirect discrimination, provides:

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.

46    Ms Bishnoi alleges that Star Track imposed a requirement, condition or practice during the Relevant Period that Ms Bishnoi tolerate exposure to the harassment of female employees by male employees, and then particularises the alleged imposition of the requirement, condition or practice. Star Track submitted that “[t]he Condition pleaded … is about what the Applicant might have done in response to alleged sexual harassment, not what the Respondent did, if anything, to cause the harassment leading to the alleged discrimination. In addition, none of the particulars show the First Respondent’s employees imposed such condition, requirement or process on the Applicant.” On one view, this submission takes an unduly narrow view of the pleaded allegations. However, there is some force in the submission that the Statement of Claim should clearly identify the conduct of Star Track’s employees by which Ms Bishnoi alleges that Star Track imposed a requirement, condition or practice of the kind alleged on the part of Star Track. This is a matter where the material facts relied upon should be pleaded and is not merely a matter for particulars. I would therefore strike out the relevant part of the Statement of Claim and grant leave to Ms Bishnoi to re-plead.

47    In relation to the allegation of contravention of s 16(c) of the Sex Discrimination Act, Star Track submitted that Ms Bishnoi has failed to plead the material facts that constitute the contravention of s 16(c). Insofar as particulars are relied upon, Star Track submitted that the particulars fail to identify a benefit or how Ms Bishnoi was denied a benefit by Star Track. Furthermore, Star Track submitted that the alleged benefit relied upon was not a benefit owed to Ms Bishnoi by Star Track, but was a benefit owed to her under her contract with Gurdezi.

48    In my view, Star Track’s submission regarding the deficiency in the pleaded “benefit” is linked to its argument that Ms Bishnoi has failed to establish “employment” for the purpose of the Sex Discrimination Act. I do not accept Star Track’s submission that the plea in relation to the “benefit” associated with Ms Bishnoi’s “employment” is deficient.

49    Similarly, in relation to the allegation of contravention of s 16(d) of the Sex Discrimination Act, Star Track submitted that the pleading and particulars do not demonstrate a “detriment” to which Ms Bishnoi was subjected by the actions of Star Track. Star Track submitted the alleged detriment was the result of a decision made by Ms Bishnoi to end her contract with Gurdezi and was not a detriment imposed by Star Track. I accept that the Statement of Claim should state Ms Bishnoi’s case with sufficient clarity to enable Star Track to know the case that is asserted against it and should identify the matters relied upon by Ms Bishnoi to allege a detriment imposed by Star Track. I would therefore strike out the relevant part of the Statement of Claim and grant leave to Ms Bishnoi to re-plead.

CONCLUSION

50    In my view, Ms Bishnoi’s claim should not be summarily dismissed. However, I would strike out the parts of the pleadings which are deficient for the reasons set out above and grant leave to Ms Bishnoi to re-plead.

Associate:

Dated:    24 July 2024

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