Federal Court of Australia

Rindeklev v Comcare [2025] FCA 291

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

FEUTRILL J

Introduction

1    These reasons concern an application for leave to appeal. The primary judge made orders dismissing an application for leave to bring proceedings in the Court alleging unlawful discrimination under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). The primary judge refused leave, in substance, because he was not satisfied that there was sufficient merit in the claim the applicant seeks to advance to warrant the grant of leave: Rindeklev v Comcare [2024] FCA 804 at [24]-[38].

2    The applicant brought proceedings in the Administrative Appeals Tribunal against Comcare. As part of its response to the claims, Comcare (through its solicitors) provided a witness statement of a former work colleague with whom the applicant had been in a relationship. The witness statement included a paragraph that said the applicant had sent photographs to the witness taken when she was younger and at a time ‘when she advertised her services as a sex worker’. The applicant claimed that the act of Comcare filing the statement was sexual harassment and intimidation and that it caused her to withdraw her claims in the Tribunal: PJ [1]-[2].

3    The applicant lodged a complaint with the Australian Human Rights Commission under s 46P of the Human Rights Commission Act in which she alleged unlawful discrimination on the basis that the conduct of Comcare was unlawful sexual harassment under s 28A and s 28L of the Sex Discrimination Act 1984 (Cth). A delegate of the President of the Commission terminated that complaint on the ground that she was satisfied that the complaint was misconceived or lacking in substance or both under s 46PH(1B)(a) of the Human Rights Commission Act: PJ [3].

4    Due to the ground upon which her complaint was terminated, the applicant required leave to make an application in the Court alleging unlawful discrimination under s 46PO(1) and s 46PO(3A)(a) of the Human Rights Commission Act.

5    Section 28A of the Sex Discrimination Act provides, relevantly:

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.

…

(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.

6    Before the primary judge the respondent contended, and the primary judge accepted, that the alleged impugned conduct of Comcare could not satisfy the definition of sexual harassment: PJ [29]-[38].

7    It was common ground that the impugned conduct does not fall within the meaning of s 28A(1)(a) and, therefore, the relevant question was whether the impugned conduct was ‘other unwelcome conduct of a sexual nature in relation to [the applicant]’ within the meaning of s 28A(1)(b) of the Sex Discrimination Act. The primary judge accepted that unwelcome conduct is of broad import and ‘should not be read down or confined by reference to limits or restrictions which do not appear in the statute’: PJ [34]. For the purpose of considering leave, the primary judge also accepted that the applicant found the inclusion of the offending paragraph in the witness statement unwelcome and that it was arguable that a reasonable person in the respondent’s position would have anticipated that the applicant would be offended and humiliated by the filing of a witness statement with content of that kind. However, those aspects alone did not make the conduct sexual harassment: PJ [37]. Relevantly, the primary judge concluded that the impugned conduct was not ‘conduct of a sexual nature’: PJ [36].

8    The applicant contends, in substance, that the primary judge erred in law in that he misconstrued s 28A(1)(b) of the Sex Discrimination Act because it is, at least, reasonably arguable that, on the proper construction of s 28A(1)(b), the alleged impugned conduct falls within the meaning of the expression ‘other unwelcome conduct of a sexual nature in relation to [the applicant]’. The applicant seeks leave to advance a ground of appeal to that effect. Notwithstanding that the primary judge was exercising a discretionary power, if the primary judge misconstrued s 28A(1)(b) in determining that the alleged impugned conduct could not satisfy the definition of sexual harassment, it was not in issue that an appellate court could correct such an error under the principles of appeals from discretionary judgments explained in House v The King [1936] HCA 40; 55 CLR 499 at 504-505.

9    The applicant appeared and made extensive oral submissions in chief and in reply. The application for leave was filed with a draft notice of appeal. The applicant also filed written submissions and an affidavit of hers sworn 1 August 2024. The applicant’s affidavit was read on the application without objection and received as an exhibit. The applicant also tendered, without objection, the originating application before the primary judge including her complaint to the Commission, the Commission’s notice of termination of her complaint and reasons for that termination. The respondent also appeared and made oral and written submissions in opposition to the application for leave.

Leave to appeal

10    The jurisdiction of the Court under s 46PO, including jurisdiction to grant leave to make an application, is within the original jurisdiction of the Court described in s 19 of the Federal Court of Australia Act 1976 (Cth). Except as otherwise provided by the Federal Court Act, the original jurisdiction of the Court is exercised by a single Judge: s 20(1). The primary judge was exercising the original jurisdiction of the Court as a single Judge.

11    The Court also has appellate jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court: s 24(1)(a). However, s 24(1A) of the Federal Court Act provides that an appeal shall not be brought from such a judgment where it is an interlocutory judgment unless the Court or a Judge gives leave to appeal. An order or judgment refusing to grant leave to make an application under s 46PO(3A) of the Human Rights Commission Act is an interlocutory judgment: Weir v Telstra Ltd [2023] FCAFC 196; 301 FCR 261 at [3] (Collier ACJ, Rangiah and Thomas JJ).

12    Section 24(1AA) of the Federal Court Act provides that an appeal must not be brought from a judgment of the Court constituted by a single Judge exercising original jurisdiction if the judgment is a determination of an application of the kind mentioned in s 20(3). Section 20(3) provides, relevantly, that applications for leave to institute proceedings in the Court must be heard and determined by a single Judge unless a Judge directs that the application be heard and determined by a Full Court or the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate to hear and determine the application. Therefore, at first blush, an appeal from a judgment refusing leave to make an application under s 46PO(3A) of the Human Rights Commission Act appears to be precluded by operation of s 24(1AA) and s 20(3) of the Federal Court Act. However, the Full Court (Keane CJ, Gilmour and Logan JJ) in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 (at [17]) said that s 20(3) is concerned only with cases involving the exercise of the original jurisdiction of the Court by a Full Court for which provision is made in s 20(1A) and s 20(2). The Full Court said that s 20(3) ‘does not speak, at all, to cases involving the exercise of the original jurisdiction of the Court by a single judge of the Court pursuant to s 20(1) of the Federal Court Act.’ Accordingly, subject to the grant of leave, an appeal from the primary judge’s decision is not precluded by operation of s 24(1AA) and s 20(3) of the Federal Court Act.

13    The principles applicable to an application for leave to appeal are well-established. In general, the discretion is exercised having regard to two interrelated factors. First, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

14    It is common ground, given the practical effect of the primary judge’s order was to finally determine the applicant’s claim, that the substantial injustice limb is satisfied in this case. Therefore, the only real question is whether the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave in all the circumstances, including the existence of substantial injustice.

Proposed grounds of appeal

15    The primary judge explained the principles applicable to the exercise of the discretion to grant leave to make an application under s 46PO(3A) of the Human Rights Commission Act. Amongst the principles his Honour identified were those explained in James v WorkPower Inc [2018] FCA 2083 at [31]-[32], [37], [38] and [39] (Mortimer J) as qualified by the Full Court in Weir v Telstra at [58]-[59] (Collier ACJ, Rangiah and Thomas JJ). The primary judge observed that a purpose of the leave requirement is to preclude complaints the merits of which are disproportionate to the time and resources likely to be consumed by dealing with them and that it may be appropriate for the Court to undertake a more detailed evaluation of the merits where that does not require resolution of contested evidence: PJ [24]-[28]. It is evident that the primary judge considered it appropriate to make a detailed evaluation of the merits of the applicant’s claim because, after making all assumptions of fact and law most favourable to the applicant, the remaining legal question – whether the alleged impugned conduct was ‘other unwelcome conduct of a sexual nature’ within the meaning of that expression in s 28A(1)(b) – could be undertaken without resolution of contested evidence.

16    The relevant part of the primary judge’s reasons addressing the remaining legal question was as follows:

33    … [Comcare] said that it was not arguable that the filing of the witness statement with the offending paragraph in the tribunal proceeding could have been sexual in nature.

34    The statutory concept of unwelcome conduct of a sexual nature is of broad import and 'should not be read down or confined by reference to limits or restrictions which do not appear in the statute': Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; (2021) 105 NSWLR 403 at [35] (Bell P and Payne JA, McCallum J agreeing - noting that their Honours were concerned with like terminology in s 22A of the Anti-Discrimination Act 1977 (NSW)). As their Honours further explained at [101]:

As to whether as a matter of objective fact particular conduct meets the description of 'other unwelcome conduct of a sexual nature', context is everything. The meaning of language changes over time. Language falling within the concept of 'other unwelcome conduct of a sexual nature' may change over time. Societal norms, including the common understanding about what is and is not conduct of a sexual nature, change. Analysing decisions from 20 years ago about what was or was not conduct of a sexual nature is fraught with risk …

35    It may be possible for a corporation to engage in sexual harassment by means of a communication attributable to the entity rather than to an individual for whose acts the corporation is responsible: Weir v Telstra Limited at [118].

36    The filing of the witness statement and the taking of steps to seek to rely upon the statement in the proceedings is accepted to be the act of Comcare (by its lawyers). It was conduct that lacked any contextual aspect to support a claim that it is sexual in nature. Both by reason of its character and context, it is depersonalised. Further, it is not conduct that involves acting in a sexual way or which involves a form of communication that might be described as containing sexualised or gender-based insults or taunts. It is conduct about sexual matters, but the mere act of uploading the statement and seeking to rely upon it for the purposes of the Tribunal proceedings is not sexual in nature. Even if, as Ms Rindeklev contends, the statement was irrelevant, there is no suggestion as to how that (disputed) aspect, as a contextual matter, might support a conclusion that the conduct complained of was of a sexual nature.

17    The applicant’s draft notice of appeal commences with the following general ground:

1.    Ground 1 of 1. The primary judge made an error of law when deciding the impugned act of sexual conduct under the Sex Discrimination Act 1984, alleged under s28A(1)(b) was not conduct meeting the definition of sexual harassment assessing it under s28A(1)(a). As this was the only contention said to bar the claim, as being of such a nature that it could not reasonably be argued, the mistake was directly impacting the outcome of the judgement which refused the applicant’s request for an order to commence proceedings under the Sex Discrimination Act 1984.

…

18    There are seven paragraphs after ground 1 that are, in effect, particulars of the main ground. The ground and particulars are also augmented by the matters set out in the applicant’s affidavit of 1 August 2024 and her written and oral submissions. The substance of the applicant’s contentions in all these forms may be distilled to the following.

(1)    The primary judge misunderstood the nature of her claim about the respondent’s conduct and, consequently, took an unduly narrow view of the impugned conduct. That is, the primary judge focussed on the act of filing the witness statement rather than the whole context by which, in effect, the respondent provided the witness statement to the applicant. That is, a witness statement containing an offending paragraph was filed in proceedings to which the applicant was a party and in circumstances in which the statement was not relevant to the issues in the proceeding and the offending paragraph would inevitably come to the attention of the applicant. The applicant submits this error is revealed in the first three sentences of PJ [36] and, in particular, the reference to ‘depersonalised’.

(2)    The primary judge conflated the concept of ‘sexual’ in s 28A(1)(a) (‘sexual advance’ and ‘sexual favour’) with the concept of ‘sexual’ in s 28A(1)(b) (‘conduct of a sexual nature’). As a consequence, his Honour focussed on sexualised conduct. The applicant submits this error is revealed in the reference to ‘acting in a sexual way’ and communications ‘containing sexualised … insults or taunts’ in PJ [36].

(3)    The primary judge misconstrued s 28A(1)(b) by considering that ‘conduct of a sexual nature’ requires that the person engaging in sexual harassment must intend to engage in conduct of a sexual nature or direct that conduct at the person sexually harassed. The applicant submits that construction is contrary to authority. The applicant cites Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91 and Johanson v Michael Blackledge Meats [2001] FMCA 6; 163 FLR 58 as authority for that proposition.

19    Although none of the materials the applicant filed in support of the application for leave assert that the primary judge made any error in the identification and application of the principles applicable to the exercise of the discretion to grant leave under s 46PO(3A) of the Human Rights Commission Act, in the course of the applicant’s oral submissions she submitted that the primary judge was, in substance, wrong to undertake a detailed evaluation of the merits of her unlawful discrimination claim. The applicant submits that determination of the merits of her claim was a matter for a trial judge in the proceeding for which she sought leave and that a determination of whether there was sexual harassment and unlawful discrimination should only take place after all the evidence had been heard and the findings of fact made.

20    It is not completely clear how this submission fits into the proposed grounds of appeal. However, I gained the impression during the applicant’s submissions that it is probably an element or aspect of contention (1). Put another way, the primary judge’s characterisation of the applicant’s claim resulted in his Honour applying the law to an unduly narrow set of facts and not the full and complete facts with greater context and nuance after hearing evidence and making findings of fact. Therefore, the primary judge was wrong to consider that the merits could be evaluated without determining the facts.

21    In the draft notice of appeal and the applicant’s affidavit of 1 August 2024 there is also an assertion of a failure on the part of the primary judge to hear the applicant. The applicant’s affidavit contains a statement to the effect that the primary judge limited ‘at times’ the applicant’s oral argument. The affidavit also sets out in a series of paragraphs arguments the applicant contends she made before the primary judge addressing s 106 of the Sex Discrimination Act (vicarious liability) and witness immunity. As vicarious liability of the respondent for the conduct of its solicitors was accepted for the purposes of the application and it was not necessary for the primary judge to determine the issue of witness immunity, that proposed contention does not have any prospects of success. Further, that contention was not developed further in the applicant’s oral submissions nor was any ground identified in support of it. Therefore, for these reasons, it can be disregarded.

22    Ground 2 of the draft notice of appeal refers to substantial injustice if leave to appeal is refused and to important questions said to be raised in the appeal. Then follows ten paragraphs that appear to largely address the asserted merits of the unlawful discrimination claim the applicant intends making. These too may be put to one side as it is accepted that substantial injustice will result if leave is refused and the primary judge’s orders are wrong.

Consideration

23    Expressing disagreement, even strong disagreement, with the outcome of the primary judge’s reasons is not sufficient to raise doubt about the correctness of the primary judge’s orders to obtain a grant of leave to appeal. It is necessary for the applicant to identify some arguable appealable error (an error that an appellate court can correct) through the draft notice of appeal and (or) submissions. The Court may then assess whether the merits of the asserted error create sufficient doubt to warrant, in all the circumstances, the grant of leave to appeal.

24    For the reasons that follow, the applicant has not identified any arguable appealable error or otherwise demonstrated that the primary judge’s order is attended with sufficient doubt to warrant the grant of leave to appeal.

Nature of the applicant’s claim

25    The applicant submits that the nature of her claim was set out in the originating application that was before the primary judge. The applicant pointed to a description of her complaint to the Commission under the heading ‘What happened?’ as summary of the relevant facts. The primary judge summarised the substance of the applicant’s claim in many parts of his Honour’s judgment: PJ [1], [2], [9]-[18]. The applicant has not identified any manner in which the primary judge failed to properly, adequately or fully summarise the nature of her claim.

26    Relevantly, the primary judge said:

19    So, in the circumstances described above, the conduct that Ms Rindeklev says amounts to sexual harassment is the conduct of Comcare (by its lawyers) in submitting the witness statement with the offensive paragraph and seeking to rely upon it in the second application in circumstances where, so Ms Rindeklev contends, viewed objectively, the matters in that paragraph were not relevant (Comcare's Conduct). Further, for reasons I have explained, for present purposes her allegation must be approached on the basis that there is a reasonable basis to support her claim that the matters in the offending paragraph were irrelevant to the proceedings before the Tribunal but Comcare (by its lawyers) thought they were relevant.

20    In oral submissions, at times, Ms Rindeklev tended to treat Comcare's Conduct as being equivalent to Comcare (by its lawyers) making the statements attributed to the witness in the offending witness statement. She also referred to Comcare as having encouraged or procured the offending statement. Of course, it may be accepted that a forensic decision was made by Comcare's lawyers to include the offending paragraph in the statement that was uploaded. However, that is not the same as attributing the statement in that paragraph to Comcare (by its lawyers) such that they might be treated as themselves having said the things in the offending paragraph.

21    Nor was there any basis put before the Court for some form of claim that Comcare (by its lawyers) encouraged or procured the witness to say what was in the statement (as distinct from recording his account to that effect) or that Comcare itself engaged in some act for which it might be liable or that Comcare instructed or induced its lawyers to present the witness statement. Ordinarily, a decision of that kind would be a forensic decision to be made by the lawyers in the discharge of their professional obligations after receiving the views of their client.

22    Despite the reference by Ms Rindeklev during the course of oral submissions to the direct liability that may arise under s 105 of the Sex Discrimination Act for a person who 'causes, instructs, induces, aids or permits another person to do an act that is unlawful' under the legislation, no claim of that kind was made to the Commission. Although Ms Rindeklev alleged that Comcare had engaged in sexual harassment it was a claim based upon Comcare's responsibility for the acts of its lawyers. For the purposes of its submissions opposing leave, Comcare did not dispute its vicarious liability for the conduct of its lawyers.

27    Further, contrary to the applicant’s oral submissions, in her affidavit of 1 August 2024, she deposes:

23    The primary judge correctly identified the conduct in question as (a) filing the witness statement and (b) taking steps to seek to rely on it in what the Applicant said was unrelated proceedings….

28    I do not accept that it is reasonably arguable that the primary judge misunderstood the nature of the applicant’s claim or characterised the impugned conduct in an unduly narrow manner that resulted, or could have resulted, in misapplication of s 28A(1)(b) of the Sex Discrimination Act to the facts the primary judge assumed. The first sentence of PJ [36] is simply a compressed or shorthand description of the more extensive summary of the applicant’s claims set out elsewhere in the reasons.

29    Likewise, I do not accept that it is not reasonably arguable that the primary judge made any error in his explanation or application of the relevant principles. It was appropriate for the primary judge, in effect, to undertake a ‘more detailed evaluation of the merits’ because, after making all assumptions of fact most favourable to the applicant, evaluation of the merits of the legal question – whether the alleged impugned conduct was ‘other unwelcome conduct of a sexual nature’ within the meaning of that expression in s 28A(1)(b) – could be undertaken without resolution of contested evidence. It was a similar approach to that which the Court may take in an application to strike-out a pleading for failing to disclose a reasonably arguable cause of action on a point of law under r 16.21(e) of the Federal Court Rules 2011 (Cth) or upon an application for summary dismissal of proceedings under s 31A of the Federal Court Act or r 26.01 of the Rules. It would be contrary to the operation of s 46PO(3A) of the Human Rights Commission Act as a filter, to grant leave to make an application alleging unlawful discrimination that would be liable to be summarily dismissed or struck-out for failing to disclose a reasonably arguable cause of action.

Conflation of the limbs of s 28A(1) and importing intention and direction into s 28A(1)(b)

30    The applicant’s references to Plauen Holdings and Blackledge Meats appear to be references to observations Driver FM made in each of those cases to the effect that the ‘test’ as to whether conduct is of a sexual nature is objective and it does not matter whether the person who engaged in the conduct intended to act in a sexual way or was aware that he or she was acting in a sexual way: Plauen Holdings at [24]; Blackledge Meats at [84]. These propositions may be accepted, but there is nothing in the primary judge’s reasons that reveal any arguable error that his Honour misunderstood that the question of whether conduct is of a sexual nature is objective or that the intention of the person engaging in the conduct is not relevant. Nor do his Honour’s reasons reveal any arguable error to the effect that in some manner his Honour impermissibly conflated the sexual element of ‘unwelcome conduct of a sexual nature’ in s 28A(1)(b) with the sexual element of the sexual nature of ‘an unwelcome sexual advance’ or ‘unwelcome request for sexual favours’ that are the subject of s 28A(1)(a).

31    Acting in a ‘sexual way’ and communications ‘containing sexualised or gender-based insults or taunts’ are types of conduct that could be ‘unwelcome conduct of a sexual nature’. The primary judge distinguished the impugned conduct of the respondent from such conduct of a ‘sexual nature’ to explain his reasons for concluding that the impugned conduct does not fall within s 28A(1)(b). The conduct the subject of s 28A(1)(a) ‘sexual advances’ and ‘requests for sexual favours’ is a narrower subset of the broader term ‘conduct of a sexual nature’ that is the subject of s 28A(1)(b), but that does not mean that terms used in s 28A(1)(a) cannot inform the meaning of the term used in s 28A(1)(b).

32    Neither the applicant’s draft notice of appeal nor her submissions in support of her application for leave identify any error in the manner in which the primary judge described the breadth of the statutory concept of ‘unwelcome conduct of a sexual nature’ or the importance of context and societal norms and common understanding about what is and what is not conduct of a sexual nature. Also, that societal norms and common understandings change with time.

33    Nonetheless, the applicant submits the primary judge’s error is evident from his reference to ‘depersonalised’, ‘not conduct that involves acting in a sexual way’, and ‘not conduct … which involves a form of communication that might be described as sexualised or gender-based insults or taunts’ (emphasis added). The applicant drew an analogy between the alleged conduct of the respondent in this case – filing an irrelevant witness statement containing the offensive paragraph and taking steps to rely upon it – and the conduct of Vitality Works in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; 105 NSWLR 403 – displaying a poster of Ms Yelda in her workplace which showed a photograph of her above which there was a caption that read: ‘Feel great – lubricate’. The analogy the applicant evidently seeks to draw is the provision to her of a witness statement containing the offensive paragraph describing photographs of the applicant and referring to her as a sex worker is equivalent to displaying a poster with sexual innuendo concerning Ms Yelda in her workplace. However, the analogy is incomplete and overlooks the primary judge’s reference to Vitality Works Australia at [101] and that ‘context is everything’.

34    In Vitality Works Australia taking the photograph, preparation of the poster with the caption, displaying the poster in Ms Yelda’s workplace and conveying the meaning of the poster was all conduct of Vitality Works. Further, the meaning Vitality Works conveyed through the poster was that ‘Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure’: Vitality Works Australia at [108] (Bell P and Payne JA, McCallum JA agreeing). The character and context of the conduct of Vitality Works is quite different from and not analogous to the impugned conduct of the respondent.

35    In Vitality Works Australia Bell P and Payne JA also observed:

104    In Poniatowska v Hickinbotham [2009] FCA 680, Mansfield J at [294] said about the phrase “conduct of a sexual nature”:

“[294]    The term ‘conduct of a sexual nature’ is not defined other than inclusively in the [Sex Discrimination] Act. The content of the term ‘of a sexual nature’ must take its meaning from its context. Its context includes s 28A(1)(a), referring to sexual advances or requests for sexual favours. Section 28A(1)(b) and (2) is intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a), but I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set the outer bounds of ‘conduct of a sexual nature’. It does not, in my view, extend to encompass the conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language.”

105    We agree with Mansfield J that it is not necessary or appropriate to set the outer bounds of “conduct of a sexual nature”. We respectfully doubt, however, that “conduct of a sexual nature” necessarily excludes “conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language” (emphasis added).

36    Similarly, in Blackledge Meats to which the applicant has also made reference, when describing ‘other unwelcome conduct of a sexual nature’ for the purposes of s 28A(1)(b) Driver FM said (at [84]) that while the sale of an ordinary dog bone is not conduct of a sexual nature, the sale of a dog bone that had been shaped to resemble a human penis was conduct of a sexual nature. Driver FM also identified exposure to sexually explicit material and sexually suggestive jokes as other examples of conduct of a sexual nature.

37    All these authorities are firm indications that the meaning the primary judge ascribed to ‘conduct of a sexual nature’ in PJ [36] was without arguable error.

38    The necessary focus of s 28A(1)(b) was conduct in which the respondent (through its solicitor) is alleged to have engaged. That conduct was filing an allegedly irrelevant witness statement containing the offensive paragraph and taking steps to rely upon that statement in the Tribunal proceedings. The offensive paragraph was about the applicant, and it pertained to sex. In that sense the offensive paragraph dealt with the subject matter of a sexual nature but the offensive paragraph is not a statement or conduct of the respondent. The primary judge described the character and context of the impugned conduct as ‘depersonalised’. This description draws on the non-exhaustive definition of ‘conduct of a sexual nature’ in s 28A(2) which refers to the person engaging in the conduct of a sexual nature ‘making a statement of a sexual nature to a person or in the presence of a person’ (emphasis added). There is no evident arguable error in the primary judge’s approach or characterisation of the impugned conduct as ‘depersonalised’.

39    It follows that it is not reasonably arguable that the primary judge misconstrued s 28A(1)(b). The primary judge identified the construction of the provision in a manner that the applicant does not contend was erroneous and he then applied that construction on the assumption that facts upon which the applicant’s claim was based were proved. No arguable error relating to the manner in which the primary judge applied s 28A(1)(b) to the assumed facts has been identified. In short, there is insufficient doubt that there is any error in the primary judge’s conclusions to warrant the grant of leave.

Disposition

40    The application for leave to appeal must be dismissed with costs.

Associate:

Dated:    1 April 2025