Hanson v Burston [2022] FCA 1234

Hanson v Burston [2022] FCA 1234

The Court has jurisdiction to determine a civil application for victimisation under s 94(1) SD Act, as such conduct is included in the statutory definition of 'unlawful discrimination' for the purposes of the AHRC Act and does not require or confer criminal jurisdiction; however, several parts of the applicant's APOC relate to factual allegations not included in the terminated AHRC complaint and must be summarily dismissed under s 46PO(3); other aspects of the pleadings are inadequately particularised but are not so deficient as to warrant summary dismissal and may be rectified by re-pleading.

Parties
Applicant: Pauline Hanson; Respondent: Brian Burston
Jurisdiction
Australia
Judgment Date
19 October 2022
Procedural Posture
Interlocutory Application (summary Judgment or Strike Out) / Decision Following Hearing of Summary Judgment/strike Out Application
Outcome
Interlocutory application granted in part (summary dismissal/strike out in part); otherwise dismissed with leave to re-plead.
Legal Topics
Interlocutory Applications, Summary Judgment, Strike Out, Victimisation, Sex Discrimination Act S 94, Australian Human Rights Commission Act S 46 Po(3), Jurisdiction, Pleading Requirements
Practice and Procedure Discrimination Law Administrative Law Human Rights Interlocutory Applications Summary Judgment Strike Out Victimisation +4 more

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Parties

Pauline Hanson

Applicant

Brian Burston

Respondent

Procedural Posture

Interlocutory Application (summary Judgment or Strike Out) / Decision Following Hearing of Summary Judgment/strike Out Application

Legal Issues

  1. 1 Does the court have jurisdiction to determine a civil case alleging victimisation under s 94(1) of the Sex Discrimination Act 1984 (Cth)?
  2. 2 Are aspects of the applicant's pleading (APOC) precluded by s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) as not within the scope of the terminated AHRC complaint?
  3. 3 Does the amended points of claim have reasonable prospects of success, or should all or part be struck out/dismissed?

Ratio Decidendi

The Court has jurisdiction to determine a civil application for victimisation under s 94(1) SD Act, as such conduct is included in the statutory definition of 'unlawful discrimination' for the purposes of the AHRC Act and does not require or confer criminal jurisdiction; however, several parts of the applicant's APOC relate to factual allegations not included in the terminated AHRC complaint and must be summarily dismissed under s 46PO(3); other aspects of the pleadings are inadequately particularised but are not so deficient as to warrant summary dismissal and may be rectified by re-pleading.

Court Disposition

Interlocutory application granted in part (summary dismissal/strike out in part); otherwise dismissed with leave to re-plead.

Orders

  • The parties are to confer and within 14 days (or such time as allowed) submit draft orders to give effect to the reasons for judgment and for the future conduct of the proceeding, including case management hearing.
  • Summary dismissal of APOC paragraphs relating to claims outside the scope of the terminated AHRC complaint, specifically allegations based on a text message to Mrs Burston, publications by other media outlets (news.com.au, SMH, ABC), and acts relating to the respondent's own AHRC complaint.