Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338

FEDERAL COURT OF AUSTRALIA

Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338 File number: VID 1368 of 2019

Judge: STEWARD J

Date of judgment: 5 March 2020

Date of publication of reasons: 13 March 2020

Legislation: Australian Human Rights Commission Act 1986 (Cth.) ss. 46PH, 46PO Federal Court Rules 2011 (Cth.) r. 34.05

Date of hearing: 5 March 2020

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 6

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr L Saccoccio

Solicitor for the Respondent: AI Group Lawyers

ORDERS VID 1368 of 2019

BETWEEN: NOORAL SABHA Applicant

AND: AUSTRALIAN RECOVERIES LIMITED ARL COLLECT PTY LTD (ABN 96 103 234 653) Respondent

JUDGE: STEWARD J DATE OF ORDER: 5 MARCH 2020

THE COURT ORDERS THAT:

1. The originating application filed on 16 December 2019 be summarily dismissed with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J: 1 In December 2019, the applicant commenced proceedings against her former employer in this Court. In that respect, the applicant filed an "Originating application under the Fair Work Act 2009 alleging discrimination" (Form 81) (the "Application"). She also lodged a "Notice of Termination" issued under s. 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth.) (the "AHRC Act"). That notice provided that a delegate of the President had terminated the applicant's complaint against her former employer pursuant to s. 46PH(1B)(b) of the AHRC Act; the delegate was satisfied that there was no reasonable prospect of the matter being settled at conciliation. 2 The applicant's claim may be set out in brief compass. The applicant was employed by the respondent in the period April to July 2019. During her short period of employment, the applicant claims that she was subject to bullying and discrimination (on the basis of gender and race) at the hands of her team leader. This culminated in the team leader terminating the applicant's employment. 3 At the first case management hearing before me on 5 March 2020, I drew to the parties' attention that, on the face of the Application, the applicant's claim was made under the Fair Work Act 2009 (Cth.) (the "FW Act"). Such an application needed to be accompanied by a certificate issued under the FW Act providing that the Fair Work Commission (the "Commission") was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful: r. 34.05 of the Federal Court Rules 2011 (Cth.). The applicant, who represented herself, explained that she had been unable to obtain such a certificate from the Commission. 4 Before me, the applicant admitted that she did not know which form to use to commence her proceeding. It became tolerably clear that the applicant's true intention was to commence a proceeding pursuant to s. 46PO of the AHRC Act. That conclusion is fortified by the provision of the "Notice of Termination" and the basis on which the applicant articulated her claim in the Application: a. The Applicant relies on sections Racial discrimination under the Racial Discrimination Act 1975 (Cth) (RDA) and sex discrimination under the Sex Discrimination Act 1984 (Cth) (SDA) against ARL – Australian Recoveries Limited; and b. Racial discrimination under the RDA against Mr John Skantzos [(the team leader)] ... (Errors in original.) 5 The Application she had filed was therefore inapt. I thus informed the applicant that she may wish to consider commencing a proceeding against her former employer under the AHRC Act either in the Federal Circuit Court or this Court, provided that she filed an application in the correct form. Given the relief sought by the applicant ($30,000 in damages and an apology letter), it was agreed that such a matter would be more appropriately heard by the Federal Circuit Court. 6 In light of the above, I summarily dismissed the Application with no order as to costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.