Leach v Burston [2022] FCA 87

Leach v Burston [2022] FCA 87

It is reasonably arguable that the 'acts, omissions or practices' relevant for s 46PO(3)(b) AHRC Act are limited to the conduct alleged in the original complaint and do not extend to all statutory elements of unlawful discrimination. The claims, except for those under s 28G(2) SD Act, have a reasonable prospect of success. The Court has reasonably arguable jurisdiction to determine victimisation under s 94(1) SD Act as a civil claim due to its inclusion in 'unlawful discrimination' in the AHRC Act. The s 28G(2) claim does not disclose a reasonable cause of action as the applicant was not providing services within the meaning of that section.

Jurisdiction
Australia
Judgment Date
10 February 2022
Procedural Posture
Interlocutory Application / Judgment on Interlocutory Application for Strike Out And/or Summary Dismissal
Outcome
Interlocutory application granted in part; s 28G(2) claim dismissed; paragraphs 11-13 of Points of Claim struck out; application otherwise dismissed.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'sex Discrimination' 'sexual Harassment' 'victimisation' 'jurisdiction' 'civil Remedies for Unlawful Discrimination']
['practice and Procedure' 'discrimination Law' 'human Rights' 'employment Law'] ['summary Dismissal' 'strike Out of Pleadings' 'sex Discrimination' 'sexual Harassment' 'victimisation' 'jurisdiction' 'civil Remedies for Unlawful Discrimination']

Case Brief

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Procedural Posture

Interlocutory Application / Judgment on Interlocutory Application for Strike Out And/or Summary Dismissal

Legal Issues

  1. 1 ['Whether s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) precludes the applicant from pursuing proceedings in this Court' 'Whether the Court has jurisdiction to determine contraventions of s 94(1) of the Sex Discrimination Act 1984 (Cth)' "Whether applicant's claims have a reasonable prospect of success" "Whether 'acts, omissions or practices' for s 46PO(3)(b) of the AHRC Act are limited to the events constituting alleged sexual harassment/discrimination" 'Whether appropriate to determine s 46PO(3) AHRC Act and s 94(1) SD Act issues in an interlocutory application']

Ratio Decidendi

It is reasonably arguable that the 'acts, omissions or practices' relevant for s 46PO(3)(b) AHRC Act are limited to the conduct alleged in the original complaint and do not extend to all statutory elements of unlawful discrimination. The claims, except for those under s 28G(2) SD Act, have a reasonable prospect of success. The Court has reasonably arguable jurisdiction to determine victimisation under s 94(1) SD Act as a civil claim due to its inclusion in 'unlawful discrimination' in the AHRC Act. The s 28G(2) claim does not disclose a reasonable cause of action as the applicant was not providing services within the meaning of that section.

Court Disposition

Interlocutory application granted in part; s 28G(2) claim dismissed; paragraphs 11-13 of Points of Claim struck out; application otherwise dismissed.

Orders

  • ['The cause of action alleging a contravention of s 28G(2) SD Act is summarily dismissed.' 'Paragraphs 11, 12, and 13 of Points of Claim are struck out.' "Respondent's interlocutory application is otherwise dismissed." 'Parties to file agreed proposed costs orders by 24 February 2022 or written submissions if not...