Case: Gauci v Kennedy [2006] FCA 869
Outcome: related
On 6 July 2006 I granted the appellant leave to file and serve out of time a notice of appeal from the decision of Jarrett FM, and leave to appeal from the decision of Jarrett FM: Gauci v Kennedy [2006] FCA 869. The background and facts of this matter are set out in that decision, and I explained in some detail principles referable to summary dismissal. It is unnecessary to repeat those principles here, other than to acknowledge that the power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases. 4 In relation to the application for summary dismissal by the second respondent, the learned Federal Magistrate recognised the caution with which such applications should be approached. His Honour examined the relevant legislation, in particular ss 5 , 14 , 28A , 28F , 94 , 105 and 106 of the SD Act . 5 His Honour was satisfied that: &#8226; no conduct of the second respondent constituted sexual harassment of the appellant; and &#8226; while conduct of the first respondent could amount to harassment of the appellant within the ordinary meaning of the word, that conduct was not enough to establish a breach of the SD Act . Therefore even assuming that the first respondent was at all material times an employee of the second respondent, this aspect of the claim against the second respondent was bound to fail. 6 However, his Honour did not accept the submissions of the second respondent that the appellant's claim of sex discrimination should be summarily dismissed, and this aspect of the appellant's claim remains currently before his Honour. 7 His Honour made the following substantive orders: (1) That the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act 1984 be dismissed; and (2) That otherwise the second respondent's application filed on 1 November 2004 be dismissed. 8 At the hearing before me the second respondent was represented by solicitors. Neither the appellant nor the first respondent were legally represented. 9 A number of the submissions of the parties went to the issues for determination before the Federal Magistrate rather than the issue of whether the learned Federal Magistrate was correct to summarily dismiss the application. The question before me is whether any submissions made at the appeal persuade me that this matter should not be revisited in full by the Federal Magistrates Court. 24 Consideration of the issue whether the conduct of the first respondent did constitute sexual harassment within the meaning of s 28A SD Act did, in my view, give rise to a real question to be determined between the parties. In this respect, I repeat the observations I made in Gauci [2006] FCA 869 at [44] . 25 Having heard the submissions of the parties I consider that the case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Accordingly, in my view the learned Federal Magistrate should not have summarily dismissed the applicant's claim against the second respondent in respect of Pt II Div 3 SD Act , to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant. 26 The matter should be remitted to the Federal Magistrates Court to be heard in full by his Honour and determined on the submissions of the parties at trial. THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of Jarrett FM delivered on 12 October 2005, that the appellant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside. 3. The application be remitted to the Federal Magistrates Court for directions and determination. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 13 July 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: TJ Bradley Solicitor for the Second Respondent: Brian Bartley &amp; Associates Date of Hearing: 6 February 2007 Date of Judgment: 13 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1051.html