Leach v Burston

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 10 February 2022
• Neutral Citation: [2022] FCA 87
• Date: 10 February 2022

FEDERAL COURT OF AUSTRALIA

Leach v Burston [2022] FCA 87

File number(s):	NSD 1229 of 2021
Judgment of:	HALLEY J
Date of judgment:	10 February 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 46PH, 46PO Federal Court of Australia Act 1976 (Cth) ss 31A Federal Court Rules 2011 (Cth) rr 16.21, 26.01 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Human Rights Legislation Amendment Act (No 1) 1999 (Cth) Members of Parliament (Staff) Act 1984 (Cth) s 20 Sex Discrimination Act 1984 (Cth) ss 4, 5, 9, 14, 22, 26, 28A, 28B, 28G, 28L, 94 Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) Explanatory Memorandum, Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) Explanatory Memorandum, Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 s 47A
Cases cited:	Australian Education Union v Human Rights and Equal Opportunity Commission (1997) 80 FCR 46 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 Bruce v Odhams Press Limited [1936] 1 KB 697 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 Chen v Monash University (2016) 244 FCR 424; [2016] FCAFC 66 Cumaiyi v Northern Territory of Australia [2020] FCA 1299 Deep Investments Pty Ltd v Casey [2018] FCA 603 Dye v Commonwealth Securities Limited [2010] FCA 720 Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 Grigor-Scott v Jones (2008) 168 FCR 450; [2008] FCAFC 14 Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 Harris v Bryce and Another (1993) 41 FCR 388 Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 Houston v State of New South Wales (No 2) [2021] FCA 637 IW v City of Perth (1997) 191 CLR 1 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149; [2012] FCA 8 Kitiko v University of Technology Sydney [2021] FCA 360 Leach v Commonwealth of Australia [2021] FCA 158 Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA O’Connor v Ross (No 1) [2002] FMCA 210 Penhall-Jones v State of NSW [2007] FCA 925 Polar Aviation Pty Ltd and Another v Civil Aviation Safety Authority and Others (2012) 203 FCR 325; [2012] FCAFC 97 Sklavos v Australasian College of Dermatologists [2016] FCA 179 Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC Spencer v Commonwealth of Australia (2010) 241 CLR 118 Travers v State of New South Wales [2000] FCA 1565 Troupoulos v Journey Lawyers Pty Ltd [2019] FCA 436 Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; 386 ALR 331; [2020] VSCA 186 Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 307 IR 443; [2021] NSWCA 147 Walker v Cormack (2011) 196 FCR 574 Walker v State of Victoria [2012] FCAFC 38 Waters and Others v Public Transport Corporation (1991) 173 CLR 349 Western Australia v Fazeldean and Others (No 2) (2013) Wilson v Britten-Jones (No 2) [2020] FCA 1290 211 FCR 150; [2013] FCAFC 58 Winters v Fogarty [2017] FCA 51 Wride v Schulze [2004] FCAFC 216
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	220
Date of hearing:	8 October 2021
Counsel for the Applicant:	Mr P Moorhouse with Ms R Kumar
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondent:	Ms K Eastman SC with Mr R Lee
Solicitor for the Respondent:	Minter Ellison

ORDERS

		NSD 1229 of 2021
BETWEEN:	WENDY LEACH Applicant
AND:	BRIAN BURSTON Respondent

order made by:	HALLEY J
DATE OF ORDER:	10 February 2022

THE COURT ORDERS THAT:

1. The cause of action in the Further Amended Originating Application alleging a contravention of s 28G(2) of the Sex Discrimination Act 1984 (Cth) be summarily dismissed.

2. Paragraphs 11, 12 and 13 of the Points of Claim be struck out.

3. The respondent’s interlocutory application filed on 14 September 2021 (interlocutory application) be otherwise dismissed.

4. If the parties are unable to agree orders by 24 February 2022 with respect to the payment of their costs of and incidental to the hearing of the interlocutory application, each party should by not later than that date file and serve a copy of their proposed orders as to costs, together with an outline of written submissions in support not exceeding two pages in length.

5. Costs orders will then be determined on the papers and without a further oral hearing.

6. The matter be listed for a case management hearing at 9.30 am on Friday, 18 February 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the ...