Picos v Servcorp Limited [2014] FCA 922

FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited [2014] FCA 922 Citation: Picos v Servcorp Limited [2014] FCA 922

Parties: CONNIE LOUISE PICOS v SERVCORP LIMITED

File number: NSD 766 of 2014

Judge: GLEESON J

Date of judgment: 26 August 2014

Catchwords: HUMAN RIGHTS – discrimination – sexual harassment – where applicant unable to appear at hearing – claim for injunctive and monetary relief – where AHRC has not given notice of termination of the complaint

Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PE, 46PH, 46PO, s 46PP Sexual Discrimination Act 1984 (Cth) s 28G Federal Court of Australia Act 1976 (Cth) s 19, Federal Court Rules 2011 (Cth) r 5.05, 5.22, 5.23, 17.01

Cases cited: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641

Date of hearing: 6 August 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 46

Counsel for the Respondent: Mr M E Orlov

Solicitor for the Respondent: HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 766 of 2014

BETWEEN: CONNIE LOUISE PICOS

Applicant

AND: SERVCORP LIMITED

Respondent

JUDGE: GLEESON J DATE OF ORDER: 26 AUGUST 2014 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The claim for an interim injunction requiring the respondent to pay the applicant $500,000 be dismissed. 2. The claim for the sum of $200 million be dismissed. 3. The application be adjourned to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions.

THE COURT DIRECTS THAT:

4. The Registry send a copy of this judgment, the affidavit of Mr Moufarrige dated 1 August 2014, and the three exhibits received into evidence on 6 August 2014 to the applicant at: a) the email address nominated on the amended originating application; and b) the most recent contact address for the applicant in the Court file. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 766 of 2014

BETWEEN: CONNIE LOUISE PICOS

Applicant

AND: SERVCORP LIMITED

Respondent

JUDGE: GLEESON J DATE: 26 AUGUST 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was listed before me as duty judge on 6 August 2014 for hearing of the applicant's application for interlocutory relief sought by an originating application under the Australian Human Rights Commission Act 1986 (Cth) ("AHRC Act") filed on 25 July 2014. 2 The applicant alleges that she was the victim of sexual harassment at a serviced office she licenced in premises at Level 1, The Realm, 18 National Circuit, Barton in the Australian Capital Territory ("Barton office"). According to her affidavit dated 25 July 2014, on 11 July 2014 the applicant was excluded from the office. The applicant seeks: a. an interim injunction requiring the respondent immediately to give the applicant access to the Barton office; b. an interim injunction requiring the respondent to pay the applicant $500,000 representing nominal income lost and being lost until the matter is finally resolved; c. $200 million pursuant to s 46PO of the AHRC Act. 3 On 30 July 2014, the matter was first listed before Perry J. At that time, the originating application had not been served. Her Honour granted leave to the applicant to file and serve an amended originating application providing that the claim is made under s 28G of the Sexual Discrimination Act 1984 (Cth). 4 On 31 July 2014, an amended originating application was filed. 5 At the hearing before me on 6 August 2014, the applicant did not appear. Beforehand, the Court received a facsimile transmission from the applicant which stated, among other things, that the applicant was in hospital and sought: a. an order from the Court ordering the Minister for Health to have her appear personally immediately; b. an "adjournment until [she is] released from imprisonment". 6 Mr Orlov of counsel appeared for the respondent, instructed by HWL Ebsworth Lawyers (although no notices of acting and address for service were filed). Mr Orlov said that his client had not been served with either the originating application or the amended originating application, but it had obtained a copy of the originating application from the Court's registry. 7 Mr Orlov submitted that the proceedings should be dismissed. He did not submit that an order for costs should be made against the applicant. In support of the proposed order, Mr Orlov filed in court an affidavit of Alfred George Moufarrige dated 1 August 2014 and three exhibits comprising: a. Emails dated 1 and 5 August 2014 from Robert Schneider, a partner of HWL Ebsworth Lawyers to the applicant informing her of the firm's instructions to accept service and seeking copies of the documents filed in the proceedings; b. A letter dated 4 August 2014 from Snedden Hall & Gallop Lawyers to HWL Ebsworth Lawyers concerning personal protection workplace orders made by a Registrar of the ACT Magistrates Court at the application of Enideb Pty Ltd ("Enideb") to prevent certain conduct by the applicant. The letter states that Enideb trades as Servcorp (Canberra) and operates the Servcorp serviced offices at the Barton office; c. A letter dated 11 July 2014 from Snedden Hall & Gallop Lawyers to the applicant regarding the termination of the Service Agreement between the applicant and Enideb. The letter provides notice "that access to [the Barton office] and all services under the Agreement will cease at 5.00pm today Friday 11 July 2014." The letter states that if the applicant is unable to remove all personal belongings by 5pm, access to the Barton office by appointment could be arranged. 8 I ordered the respondent to serve on the applicant the materials filed and tendered to the Court by 6pm on 6 August 2014. I ordered the materials to be served by email to the email address on the originating application because the applicant had told Perry J on 30 July 2014, that she wanted to receive documents by email and because the address for service in that document was clearly inappropriate in that it was the very address to which the applicant sought access. On 8 August 2014, the Court received a further facsimile from the applicant which stated, among other things, that the applicant did not have access to her email account. 9 After hearing submissions from Mr Orlov, I reserved my decision both as to whether I should make the orders sought by the applicant in her facsimile, and as to whether the proceedings should be dismissed in the applicant's absence.

Orders sought by the applicant in her facsimile dated 6 August 2014 10 I am not satisfied that I have jurisdiction to make the first order in paragraph 5, above. By s 19 of the Federal Court of Australia Act 1976 (Cth), the jurisdiction of the Federal Court is vested in it by laws made by the Commonwealth Parliament. I do not know enough about the applicant's circumstances to determine under what law or laws the Court might have jurisdiction, or whether such an order would be enforceable or appropriate. Accordingly, I will not make the first order sought. 11 As to whether I should grant an adjournment, by rule 5.05 of the Federal Court Rules 2011 (Cth) ("Rules") the Court may adjourn a directions hearing from time to time. The hearing on 6 August 2014 was a directions hearing within the meaning of the Rules. Relevant considerations in deciding whether to adjourn a directions hearing are the interests of justice, the efficient and proper use of the Court's resources and any prejudice that will be suffered by either party as a result of the adjournment. 12 In order to decide whether to adjourn the proceedings, it is necessary to consider the submissions made on behalf of the respondent.

Order sought by the respondent 13 By rule 5.22 of the Rules, a party is in default if the party fails to attend a hearing in the proceeding. The applicant is in default within the meaning of that rule. 14 By rule 5.23(1)(b) of the Rules, if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be dismissed for the whole or any part of the relief claimed by the applicant immediately or on conditions specified in the order. 15 By rule 17.01(3) a party may make an oral application for an interlocutory order at a hearing. 16 I am satisfied that the respondent is entitled to make its oral application for dismissal of the proceedings in the applicant's absence. 17 Mr Orlov's submissions were, in summary: a. The application is incompetent because the court has no jurisdiction to entertain the application unless and until the President of the AHRC has given notice of termination of the complaint under s 46PE or s 46PH of the AHRC Act. b. The respondent is not the correct party because the applicant's contract for use of the Barton office is or was with a company called Enideb, which trades as Servcorp Canberra. The applicant has no right of access to the premises enforceable against the respondent and the respondent does not have the power, right or authority to give the applicant access to the premises. c. As to the first interim injunction sought, the applicant is the subject of interim personal protection workplace orders taken out against her by Enideb in the ACT Magistrates Court restraining her from entering or approaching within 50 metres of the Barton premises. The Court should not make an order inconsistent with the order of the Magistrates Court; d. Notwithstanding the applicant's request for an adjournment and her inability to attend Court, it is in the interests of justice that the Court deal with the matter on the available and incontestable material. 18 Having considered the evidence tendered on behalf of the respondent and heard Mr Orlov's submissions, I am satisfied that it is in the interests of justice that I should consider whether to dismiss part or all of the applicant's amended originating application in her absence.

Court's jurisdiction under the AHRC Act 19 Section 46PO of the AHRC Act provides relevantly: Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE or 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 Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 20 The amended originating application states: This application does not contain a notice of termination of complaint given by the President of the Australian Human Rights Commission as the application is pursuant to [AHRC Act] section 46PP…The complaint has not been terminated by the President. 21 It is plain from the application that any entitlement that the applicant may have in the future to make an application to the Federal Court alleging unlawful discrimination has not yet arisen. 22 Accordingly, the Court does not have jurisdiction in respect of the applicant's claim for monetary relief under s 46PO. 23 Section 46PP(1) of the AHRC Act provides: (1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain: (a) the status quo, as it existed immediately before the complaint was lodged; or (b) the rights of any complainant, respondent or affected person. 24 The Court's jurisdiction under s 46PP(1) must be exercised in accordance with the objects of the AHRC Act, to ensure the effective exercise of the applicant's entitlement to lodge a complaint with the Commission: cf Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641 at 659.

Final relief pursuant to s 46PO of the AHRC Act 25 In the absence of jurisdiction, the claim for monetary relief under s 46PO must be dismissed.

Interim relief pursuant to s 46PO of the AHRC Act 26 The applicant's first claim for interlocutory relief is based on the proposition that the respondent has the power to give her access to the Barton premises. 27 It is also based on the following complaints: a. That the applicant "purchased a virtual office from Servcorp Ltd. [The applicant] then upgraded to a full-time, fixed office in Canberra for an initial period of 12 months. In the first week [the applicant] was sexually harassed by the floor manager's elderly dad, who accused [the applicant] of prostitution. Then the floor manager accused [the applicant] of prostitution. The floor manager, Josie Webb, said "I will never forgive myself (for allowing her to have an office here). There were male Servcorp clients waiting outside of [the applicant's] office door harassing [the applicant] on a daily basis. Servcorp male clients were indicating to their genitals. [The applicant] complained to Servcorp. Servcorp responded that each person is responsible for their self. On 11 July 2014, Servcorp changed the lock on [the applicant's] office door. [the applicant] attempted to enter my office. Servcorp called the Australian Federal Police"; and b. That, in July 2014, the respondent's clients said "do not allow her to earn a cent until she gives a blow job".

Respondent's evidence 28 The affidavit of Mr Moufarrige states relevantly: a. He is the Chief Executive Officer and a director of the respondent; b. He believes that the applicant has brought her proceedings against the wrong party because: 1. The applicant's contractual relationship was with Enideb pursuant to a written service agreement dated 21 May 2014; 2. Enideb invoiced the applicant for services provided to the applicant by Enideb in connection with the provision of office space; 3. Enideb has informed the ACT Magistrates Court that it is the proper defendant to claims made by the applicant in the ACT Magistrates Court and consented to an order naming it as the defendant in those proceedings. 4. The respondent is not a shareholder in Enideb and has no financial interest in Enideb. 29 Annexed to Mr Moufarrige's affidavit is a copy of an affidavit made by the applicant on 14 July 2014 in proceedings in the ACT Magistrates Court. Annexed to the applicant's 14 July 2014 affidavit is a document which the applicant refers to as a commercial lease for the Barton office. The document is entitled Servcorp Service Agreement. The document says relevantly: This Service Agreement is made between Servcorp (1), the Client (2a) and the Guarantor (2b) below. Underneath, on the left hand side of the document are the following details: 1 Servcorp Office City: Canberra Servcorp: Barton Web address: www.servcorp.com.au Address: Level 1 The Realm, 18 National Cct Barton ABN: 67 008 618 077 30 An ASIC & Business Names Organisational Search of Enideb obtained on 21 July 2014 ("Enideb ASIC search") shows that Enideb's ABN matches the ABN on the Service Agreement. 31 A Current and Historical Business Name Extract for the business name "Servcorp (Canberra)" shows that the business name is owned by Enideb. The business name "Servcorp (Canberra)" does not appear on the Service Agreement. 32 The Service Agreement identifies the bank account into which payments are to be made under the agreement as an account in the name of Enideb. 33 The Enideb ASIC search also shows that the current directors of Enideb are Nicholas Moufarrige and Melissa Miller. The current issued capital of Enideb is 1000 ordinary shares. The shares are owned as follows: 400 by Kejm Pty Ltd, 500 by Ronnick Pty Ltd and 50 by Jajcwebb Pty Ltd. None of these shares are beneficially owned and I am therefore unable to determine the beneficial ownership of Enideb on the face of that search. 34 Other documents which suggest that the contractual relationship under the Services Agreement was or is between the applicant and Enideb are: a. An direct debit request apparently completed by the applicant and headed "Enideb Pty Ltd t/as Servcorp Canberra (314011) Direct Debit Request"; b. A document entitled "Customer Direct Debit Request (DDR) Service Agreement" which commences with the words: This is your Direct Debit Service Agreement with Enideb Pty Ltd t/as Servcorp Canberra. c. A tax invoice dated 1 July 2014 issued by Enideb to the applicant for rental for the month of July 2014. 35 Mr Moufarrige also gave evidence that the respondent does not have and never has had any right, entitlement or power to lease, sublease, possess or grant access to the Barton premises. In support of this evidence, he annexed to his affidavit: a. A title search for Vol 1980 Folio 44 which he said was the original title for the property located at 18 National Circuit Barton. The title search records a sublease to Melvernic Pty Ltd of Area T1 on SL Plan 6435. b. A copy of the registered sublease which identified the subject land as Area T1 on Subleasing Plan 6435; c. An ASIC & Business Names Organisational Search of Melvernic Pty Ltd obtained on 21 July 2014 which shows that the directors of that company are Nicholas Moufarrige and Melissa Miller, and that the current issued capital of the company comprises four ordinary shares of which three are owned non-beneficially by Kejm Pty Ltd and 1 is owned non-beneficially by Babex Pty Ltd.

Consideration 36 In my opinion, the evidence firmly supports a conclusion that the contract by which the applicant was or is entitled to access to a serviced office at the Barton premises is between the applicant and Enideb. That evidence includes an affidavit made by the applicant herself, which identifies the contract document. It also includes correspondence from solicitors acting for Enideb. 37 The applicant complains about the conduct of: a. The father of the floor manager at the Barton premises; b. The floor manager at the Barton premises; c. Clients of Servcorp at the Barton premises; d. "Servcorp" in responding to a complaint by the applicant; e. "Servcorp" in changing the lock on the applicant's office door. 38 As to at least the last of these complaints, correspondence from Sneddon Hall & Gallop supports a conclusion that it was Enideb that changed the lock on the applicant's office door. That correspondence also supports an inference that Enideb, as operator of the Barton premises, may be responsible for the conduct of the floor manager and, perhaps, for the conduct of clients of Enideb who were at the Barton premises. 39 Although Mr Moufarrige's affidavit states that the respondent does not have and has never had any connection with the Barton premises, Mr Orlov acknowledged that one of the directors of Enideb is a relative of Mr Moufarrige. On the limited information available, there is likely to be some connection between the respondent and Enideb because Enideb is using the trading name "Servcorp (Canberra)". 40 I am not satisfied from the evidence currently available that the respondent is unable to procure access to the Barton premises for the applicant, if that is appropriate to be ordered. 41 In those circumstances, and having regard to the fact that the applicant's inability to appear in court today is not of her own choosing, I am not prepared to dismiss the proceedings insofar as they concern the first interim relief sought. That aspect of the applicant's claim should be adjourned. 42 As to the second interim relief sought, that relief cannot satisfy either of the limbs of s 46PP(1). It is a claim for damages which is appropriate relief, if at all, only after a final hearing. 43 I will dismiss the claim for the second interim relief sought.

Conclusion 44 The claims for monetary relief, both by way of interim injunction and pursuant to s 46PO of the AHRC Act should be dismissed. 45 As to the balance of the application, comprising the interim injunction for access to the Barton premises, I will adjourn the proceedings to a date to be fixed on written application by the applicant to the Registry prior to 19 November 2014 or, in the absence of such an application, to Wednesday 3 December 2014 at 9:30 am for directions. 46 Having regard to the applicant's facsimile to the Court stating that, as at 8 August 2014, she did not have access to her email, I will direct the Registry to provide a copy of this judgment together with the evidence tendered by the respondent on 6 August 2014 both to her email address and to the most recent address for the applicant on the Court file. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate: Dated: 26 August 2014