Case: Gauci v Kennedy [2005] FMCA 1505
Outcome: related
This is an appeal from a decision of Jarrett FM of 12 October 2005 ( Gauci v Kennedy [2005] FMCA 1505) where his Honour summarily dismissed a claim of Mr Gauci ("the appellant") for relief against the second respondent for a breach of Pt II Div 3 Sex Discrimination Act 1984 (Cth) ("SD Act"). 2 The claim was dismissed by the learned Federal Magistrate pursuant to Federal Magistrates Court Rules (FMCR) r 13.10, which reads as follows: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court. 15 The notice of appeal then contains several pages of submissions in relation to the issue of alleged sex discrimination by the second respondent (paras 7-12). The appellant is not however appealing against this part of the decision of his Honour - indeed, his Honour found in favour of the appellant on this issue in the context of the summary dismissal application brought by the second respondent: Gauci [2005] FMCA 1505 at [55] - [64] . In my view the issues raised by the appellant in paras 7-12 of his notice of appeal are not properly the subject of appeal, and are not relevant to the matter before me. 16 Finally however, the appellant does appeal against the finding of his Honour that the conduct of the first respondent was not sexual harassment of the appellant, and accordingly that even assuming that the first respondent was at all material times an employee or servant of the second respondent, there were no facts alleged that would or could amount to sexual harassment by the first respondent of the appellant ( Gauci [2005] FMCA 1505 at [68] ). 17 In relation to this issue, his Honour found as follows: [69] "His evidence is that the first respondent persistently pursued his romantic attention. There is no claim in his material, however, that the first respondent subjected him to an unwelcome sexual advance or made to him an unwelcome request for sexual favours. At best, she asked him to go for coffee on two occasions, pizza on one occasion and to a movie on a fourth occasion. Apart from the comment made soon after their first meeting that the applicant had nice eyes, the conversation between them was unremarkable. [70] The making of a complaint of sexual harassment against the applicant to the second respondent cannot in the circumstances relied upon by the applicant, amount to sexual harassment for the purposes of the SDA. It might be the case that the first respondent was intent on pursuing an intimate, indeed sexual, relationship with the applicant and when he spurned her she became difficult - but that is not prohibited by the Act. It might be the case that the first respondent's actions could amount to harassment within the ordinary meaning of that word, but that is not enough to establish a breach of the SDA. [71] Thus, even making the assumptions I have set out above in favour of the applicant, it seems to me that this aspect of the claim against the second respondent is bound to fail." 18 The grounds of appeal in this respect are that: 1. His Honour erred in his determination that the alleged acts against him by the first respondent did not amount to sexual harassment; and 2. His Honour did not properly interpret s 28A SD Act . 19 In response the second respondent submitted that: &#8226; Jarrett FM was correct in finding that the alleged conduct of the first respondent was not capable of amounting to sexual harassment within the meaning of s 28A SD Act , and accordingly there was no conduct in respect of which the second respondent could be liable &#8226; even if that were not so, the learned Federal Magistrate's orders should be upheld on the alternative basis that it is not alleged and it is not open on the facts to conclude that the university is vicariously liable for the alleged conduct of the first respondent under s 106 SD Act &#8226; the other matters that the applicant seeks to raise in the appeal are not properly the subject of the appeal. 20 The proceedings before me do not directly involve the first respondent. However the first respondent has also filed written submissions before me, in which she denies the alleged unlawful sexual harassment and submits that as the complaint of sexual harassment against her has been properly dismissed by Jarrett FM, there is no conduct in respect of which the second respondent can be liable. 21 While I concur with the observations of his Honour that the conduct of the first respondent could constitute harassment, I disagree with his Honour's conclusion in Gauci [2005] FMCA 1505 at [70] that the harassment was clearly such that it did not breach the SD Act . "Sexual harassment" is defined in s 28A of the Act as follows: (1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: " conduct of a sexual nature " includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.