Weir v Telstra Limited [2023] FCAFC 196

Weir v Telstra Limited [2023] FCAFC 196

The primary judge erred by construing "in the course of" in ss 28G(1) and 28L of the Sex Discrimination Act 1984 (Cth) so that conduct occurring in the course of a private dispute between neighbours could not also occur in the course of providing services or performing functions, exercising powers or carrying out responsibilities under a Commonwealth law or program. It was reasonably arguable that the second respondent's alleged access to and misuse of Telstra customer information and Telstra equipment to sexually harass the applicants occurred in the course of providing telecommunications services, or matters incidental to those services, and in the course of matters described in s 28L....

Jurisdiction
Australia
Judgment Date
14 December 2023
Procedural Posture
Application for Extension of Time, Application for Leave to Appeal and Appeal Concerning Leave Under S 46 Po(3 A)(a) of the Australian Human Rights Commission Act 1986 (cth) to Make an Application Alleging Unlawful Sexual Harassment / Full Court Appeal From an Interlocutory Judgment Refusing Leave to Commence Proceedings
Outcome
Extension of time granted; leave to appeal granted; appeal allowed; primary judge's orders set aside; leave granted to make an application alleging unlawful sexual harassment; respondents ordered to pay costs.
Legal Topics
['sexual Harassment' 'leave to Commence Federal Court Proceedings After Termination of AHRC Complaint' 'extension of Time' 'leave to Appeal' 'vicarious Liability' 'statutory Construction of "in the Course Of" and "in Connection With"']
['human Rights' 'sex Discrimination' 'practice and Procedure'] ['sexual Harassment' 'leave to Commence Federal Court Proceedings After Termination of AHRC Complaint' 'extension of Time' 'leave to Appeal' 'vicarious Liability' 'statutory Construction of "in the Course Of" and "in Connection With"']

Case Brief

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Procedural Posture

Application for Extension of Time, Application for Leave to Appeal and Appeal Concerning Leave Under S 46 Po(3 A)(a) of the Australian Human Rights Commission Act 1986 (cth) to Make an Application Alleging Unlawful Sexual Harassment / Full Court Appeal From an Interlocutory Judgment Refusing Leave to Commence Proceedings

Legal Issues

  1. 1 ['Whether the applicants should be granted an extension of time to seek leave to appeal.' 'Whether the applicants should be granted leave to appeal from the interlocutory judgment refusing leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth).' 'Whether it was reasonably arguable that the second respondent sexually harassed the applicants in the course of providing services within s 28G(1) of the Sex Discrimination Act 1984 (Cth).' 'Whether it was reasonably arguable that the second respondent sexually harassed the applicants in the course of performing functions, exercising powers or carrying out responsibilities under a Commonwealth law or program within s 28L of the Sex Discrimination Act 1984 (Cth).' "Whether it was reasonably arguable that Telstra was vicariously liable under s 106(1) of the Sex Discrimination Act 1984 (Cth) because the alleged unlawful acts were done in connection with the second respondent's employment." 'Whether the primary judge erred in treating sexual harassment occurring in the course of a private dispute between neighbours as incapable of also occurring in the course of providing services or performing statutory functions, powers or responsibilities.']

Ratio Decidendi

The primary judge erred by construing "in the course of" in ss 28G(1) and 28L of the Sex Discrimination Act 1984 (Cth) so that conduct occurring in the course of a private dispute between neighbours could not also occur in the course of providing services or performing functions, exercising powers or carrying out responsibilities under a Commonwealth law or program. It was reasonably arguable that the second respondent's alleged access to and misuse of Telstra customer information and Telstra equipment to sexually harass the applicants occurred in the course of providing telecommunications services, or matters incidental to those services, and in the course of matters described in s 28L....

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed; primary judge's orders set aside; leave granted to make an application alleging unlawful sexual harassment; respondents ordered to pay costs.

Orders

  • ['The applicants be granted an extension of time to seek leave to appeal from the orders made by the primary judge on 19 August 2022.' 'The applicants be granted leave to appeal.' 'The appeal be allowed.' 'The orders of the primary judge be set aside.' 'The appellants be granted leave to make an application to the...