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Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193 (12 March 2024)

Last Updated: 12 March 2024

FEDERAL COURT OF AUSTRALIA

Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193

File number:	NSD 992 of 2023
Judgment of:	RAPER J
Date of judgment:	12 March 2024
Catchwords:	HUMAN RIGHTS – discrimination – where the applicant claims breaches of ss 15(2), 47 and 94 of the Sex Discrimination Act 1984 (Cth) – whether the Court has jurisdiction by reason of s 46PO(3) to hear and determine aspects of the claim – whether an applicant bringing a claim for victimisation is required to plead with particularity the asserted right and the concomitant conduct of the respondent PRACTICE AND PROCEDURE – interlocutory application by the respondent for summary judgment and strike out – whether the applicant has no reasonable prospects of success with respect to certain aspects of her claim – respondent’s application to strike out aspects of statement of claim partially successful – applicant allowed to re-plead certain aspects of her claim
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46PA, 46PF(4), 46PH(2), 46PO(3), 46PO(4), 46PR Federal Court of Australia Act 1976 (Cth) ss 31A, 37M Sex Discrimination Act 1984 (Cth) ss 5(1), 5(2), 14(2)(d), 47A(2), 94(2), 94(2)(f), 106(2) Federal Court Rules 2011 (Cth) rr 16.21(d), 16.21(e), 26.01(a), 26.01(c), 34.163(2)
Cases cited:	Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 Eliezer v University of Sydney [2015] FCA 1045; 239 FCR 381 Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22 Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 Hastwell v Kott Gunning [2017] FCA 1557 Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683 John Holland Pty Ltd v Maritime Union of Australia [2009] FCA 437 Kelly v Commonwealth [2023] FCA 69 Kimber v Owners of Strata Plan No 48216  [2017] FCAFC 226 ; 258 FCR 575 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Penhall-Jones v New South Wales [2007] FCA 925 Pigozzo v Mineral Resources Ltd [2022] FCA 1166 Radisich v McDonald [2010] FCA 762; 198 IR 244 Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 Spencer v Commonwealth [2010] HCA 28; 291 CLR 118 Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 159 Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	80
Date of hearing:	5 February 2024
Counsel for the Applicant:	Ms K Eastman SC
Solicitor for the Applicant:	Gadens
Counsel for the Respondent:	Ms K Nomchong SC with Ms B Byrnes
Solicitor for the Respondent:	Holding Redlich

ORDERS

THE COURT ORDERS THAT:

1. Paragraph [134] of the applicant’s statement of claim filed on 9 November 2023 is struck out pursuant to r 16.21(d) of the Federal Court Rules 2011 (Cth).
2. The applicant is granted leave to re-plead the victimisation part of her claim pursuant to ss 47A and 94 of the Sex Discrimination Act 1984 (Cth).
3. Any party wishing to make an application for costs must, within seven days of the date of this judgment, file any application, any evidence in support of that application and written submissions (not exceeding two pages in length) which address the reasons for why a costs order can and should be made. The parties are then to confer and provide a mutually agreed time and date upon which the short argument regarding costs can be listed for hearing.
4. The matter be listed for case management on 22 March 2024.

REASONS FOR JUDGMENT

RAPER J:

1. The respondent (Oldfield Entertainment) seeks the summary resolution of a number of aspects of the applicant, Ms Whelan’s claim by use of two procedural vehicles, strike out and summary judgment. By way of interlocutory application dated 9 November 2023, Oldfield Entertainment seeks orders that certain paragraphs of the statement of claim (SOC) filed by Ms Whelan be struck out pursuant to rr 16.21(e) and/or (d) of the Federal Court Rules 2011 (Cth) or, alternatively, that certain claims contained within the impugned paragraphs be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(a) and (c) of the Rules.
2. An application for strike out is concerned only with the adequacy of the pleaded causes of action. The rule does not permit or allow for consideration of facts or evidence outside of the pleading. By contrast, an application for summary judgment requires consideration of matters outside of the pleading. In this case, the issue is whether Ms Whelan has no reasonable prospect of successfully prosecuting those parts of the proceeding to which the impugned paragraphs of the SOC relate or no reasonable cause of action is disclosed.
3. Oldfield Entertainment submits that the following paragraphs of the SOC do not disclose a reasonable cause of action for the following reasons:

(a) paragraph [134] of the SOC (as well as paragraphs [101]–[133]) does not disclose a reasonable cause of action for victimisation under ss 94(2) or 47A(2) of the Sex Discrimination Act 1984 (Cth), nor do paragraphs [101]–[133] constitute grounds for awarding aggravated damages;

(b) paragraph [163] of the SOC does not disclose a reasonable cause of action for damages because the events relied upon are submitted to be too remote to be properly or reasonably attributed to Oldfield Entertainment’s purportedly unlawful conduct; and

(c) paragraphs [57], [92] and [133] of the SOC fall outside the jurisdiction of the Court pursuant to s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) because those matters did not form part of the complaint made to the Australian Human Rights Commission.

4. For the following reasons, I dismiss the application for summary judgment but will allow the application for strike out in part and will also allow Ms Whelan to re-plead that paragraph which has been struck out concerning her victimisation claim and to re-craft her claim to address the deficiencies identified in these reasons.

Background

5. Ms Whelan is an actress, singer and performer who was employed by Oldfield Entertainment between 29 November 2013 and 13 July 2014 to perform the role of “Janet” in Oldfield Entertainment’s production of The Rocky Horror Show (2014 show). Mr Craig McLachlan was employed by Oldfield Entertainment to play the lead role of ‘Frank-n-Furter’ in the 2014 show.
6. During the 2014 show, Ms Whelan claims that Mr McLachlan inappropriately kissed her, touched her and used sexualised language to refer to other female employees involved in the 2014 show.
7. Ms Whelan claims that she has been subjected to the following three forms of unlawful discrimination under the SD Act: sex discrimination, sexual harassment and victimisation.
8. It is worthwhile also referring to the procedural history of this matter. Pursuant to orders made by the Court on 22 September 2023, Oldfield Entertainment was required to file and serve its defence by 10 November 2023. The day before it was required to do so, Oldfield Entertainment filed this interlocutory application. Under the same order, the matter was referred to Court-ordered mediation. Oldfield Entertainment has not filed any defence as yet. I echo the concerns of White J in Hillig v Darkinjung Pty Ltd & Ors [2007] NSWSC 683 at [35]–[36]:

[35] ...The time for making any such complaint about lack of particularity would be once defences have been filed and affidavits have been served, and only then, if it could seriously be contended that the defendants did not understand the case they have to meet.
[36] Arguments about pleadings which have a tendency to delay the preparation of the case for hearing, and which are not really necessary for the defendant to understand the case against him, should be firmly discouraged.

Power of the Court to strike out pleadings

9. A party may apply to the Court for an order that all or part of a pleading be struck out on a number of bases, including, as relied upon in this application, pursuant to r 16.21(e) (the pleading fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading) and/or (d) (the pleading is likely to cause prejudice, embarrassment or delay in the proceeding). Oldfield Entertainment made no specific submission as to how one should approach the exercise of power in any special way by reference to either r 16.21(e) or (d).
10. The parties agree that the power to strike out pleadings is a discretionary one, exercised when it is necessary to do so in the interests of justice: John Holland Pty Ltd v Maritime Union of Australia [2009] FCA 437 at [60]. The power should be exercised sparingly (see Radisich v McDonald [2010] FCA 762; 198 IR 244 at [20]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [44]; Wright Rubber Products Pty Limited v Bayer AG [2008] FCA 1510 at [5]) and only in a clear case, “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 159 at 175. The discretion is informed by the overarching purpose of civil practice and procedure in this Court as provided for by s 37M of the FCA Act and s 46PR of the AHRC Act. In the exercise of this power the Court should not take an unduly technical and overly pedantic approach to pleadings: Rauland Australia Pty Ltd v Johnson (No 1) [2019] FCA 1174 at [8]–[9]; Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [19].

Section 31A and r 26.01: Summary dismissal

11. In addition, Oldfield Entertainment seeks summary judgment with respect to those aspects of the pleading pursuant to s 31A of the FCA Act and r 26.01(a) and (c) of the Rules. Both provisions are relevantly extracted:

31A Summary judgment

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart from this section.

(5) This section does not apply to criminal proceedings.

26.01 Summary judgment

(1) A party may apply to the Court for an order that judgment be given against another party because:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

...
(c) no reasonable cause of action is disclosed;
...

12. To give summary judgment, the Court must be satisfied that the proceedings instituted by Ms Whelan were attended with no reasonable prospects of success and must be conscious that such a power must not be exercised lightly: Spencer v Commonwealth [2010] HCA 28; 291 CLR 118 at [60] per Hayne, Crennan, Kiefel and Bell JJ. The Court should be particularly cautious about summarily dismissing proceedings where they involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity which would require a full hearing: Kimber v Owners of Strata Plan No 48216  [2017] FCAFC 226 ; 258 FCR 575 at  [62]  quoting Eliezer v University of Sydney [2015] FCA 1045; 239 FCR 381 at [39].
13. In this case, Ms Whelan has filed her SOC and provided further particulars. No defence has been filed and, as a consequence, Ms Whelan and the Court do not know what factual allegations are admitted or disputed. Ms Whelan’s allegations should be taken at their highest. As observed by Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46]:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.

Victimisation claim: Paragraphs [134] and [101]–[133]

14. When Oldfield Entertainment moved on its interlocutory application filed on 9 November 2023, it sought to amend prayer [1(e)] of its application concerning paragraph [134] of the SOC.
15. Paragraph [134] pleads:

By its conduct described in paragraphs 84 to 92 and 101 to 133 above, the Respondent unlawfully victimised the Applicant in contravention of s 47A (to the extent it operates retrospectively) and/or s 94(1) of the SD Act.

16. By its oral application for amendment, Oldfield Entertainment sought to now strike out or seek summary judgment with respect to the entirety of [134] and no longer for its application to be limited to the allegation “to the extent it refers to [101]–[133]”. Ms Whelan resisted the application. I am prepared to give leave to that application to be granted given the apparent capacity for Ms Eastman SC, Ms Whelan’s counsel, to deftly deal with the allegation in expanded form and where there is no apparent prejudice by the granting of leave, given how the issue is resolved below.
17. It is helpful to set out the two relevant provisions concerning victimisation.
18. Section 47A of the SD Act provides as follows:

47A Victimisation

(1) It is unlawful for a person to commit an act of victimisation against another person.

Note 1: See also section 94 (offence of victimisation).
Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(2) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part (other than subsection (1)); or

(h) has made an allegation that a person has contravened a provision of Part IIA;

or on the ground that the first person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive.

(3) In a proceeding for a contravention of subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation mentioned in paragraph (2)(g) or (h), it is a defence if it is proved that the allegation was false and was not made in good faith.

19. Section 94 of the SD Act provides as follows:

94 Victimisation
(1) A person shall not commit an act of victimisation against another person.
Penalty:

(a) in the case of a natural person—25 penalty units or imprisonment for 3 months, or both; or

(b) in the case of a body corporate—100 penalty units.

(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II; or

(h) has made an allegation that a person has contravened a provision of Part IIA;

or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive.

(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation mentioned in paragraph (2)(g) or (h) if it is proved that the allegation was false and was not made in good faith.

20. One can see the apparent similarity between both provisions. Notably what is required to be established in order for a claim of victimisation to be made out did not appear to be in dispute.
21. For a claim of victimisation to be made out under each provision, Ms Whelan must satisfy the following components of the action. Oldfield Entertainment must have subjected, or threatened to subject, Ms Whelan to a detriment. That detriment must be real and not trivial. There must be a causal connection between the detriment and one of the matters listed in ss 47A(2)(a)–(h) or 94(2)(a)–(h) of the SD Act, and the ground must be a substantial and operative factor. The connection cannot be made by a “mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation”: Penhall-Jones v New South Wales [2007] FCA 925 at [85]. Notably, such a claim includes a protection because of a belief on the part of the first person that the other person has done or proposes to do one of the acts or things contained in the subsection even if he or she has not.
22. Ms Whelan’s pleading takes the following form. Ms Whelan identifies the parties, the source of jurisdiction (by reference to her complaint and the AHRC’s notice of termination) and then pleads the underpinning facts concerning the circumstances leading to up to Ms Whelan becoming employed by Oldfield Entertainment and the tour schedule of the 2014 show. Ms Whelan then specifies what Oldfield Entertainment’s duties were to Ms Whelan, including to take all reasonable steps within the meaning of s 106(2) of the SD Act to prevent its employees, including Mr McLachlan, from engaging in unlawful conduct in contravention of the SD Act, relevantly sex discrimination, sexual harassment and victimisation. Ms Whelan then under the headings “Sexual Harassment”, “Sex Discrimination” and “Respondent’s Victimisation 2017 and Onwards” claims the conduct said to give rise to each species of unlawful discrimination.
23. In that part of the pleading, under the heading “Sexual Harassment”, Ms Whelan refers to an incident alleged to have occurred on or about 9 May 2014, during the performance, where Mr McLachlan is alleged to have grabbed her jaw tightly and then aggressively (with force) thrown her face away, which was said not to be scripted or directed: at SOC [47]. Ms Whelan then pleads, at SOC [52], an interaction with the resident director, Ms Howard, which is set out as follows:
    52. The Applicant ran off stage immediately following the final scene and bows. The Applicant went directly to Howard, the resident director, in the wings. They had an exchange in words to the following effect:

Applicant: What the fuck was that?
Howard: He is mad.

The Applicant understood this to be a reference to McLachlan being angry because of the earlier heated incident with a male cast mate referred to in paragraph 47.

53. During the exchange referred to in paragraph 52, Howard stared straight ahead and did not make eye contact with the Applicant. The Applicant felt devastated and alone.
54. At that time, Howard did not offer the Applicant any support and took no action to reprimand McLachlan or give an indication to the Applicant or the cast that McLachlan’s behaviour was unacceptable or inappropriate.
55. Howard’s silence and inaction permitted and condoned McLachlan’s conduct towards the Applicant.

24. Under the main heading “Sex Discrimination”, Ms Whelan pleads that the detriments she suffered in her employment included “failure to respond to [her] concerns and complaint” about Mr McLachlan (at SOC [62]). Ms Whelan pleads a number of interactions with Ms Howard (at SOC [63]), Ms Delker (SOC [65], [66]) and Mr Frost (SOC [75]), which are extracted as follows:
    63. On the evening of 9 May 2014 and the morning of 10 May 2014, following the conversation referred to in paragraph 52 above, the Applicant and Howard had the following further communications about the incident described in paragraphs 47 and 48 above:
        1. the Applicant stated words to the effect that she felt unsupported at work in relation to the bullying and intimidation;
        2. Howard stated words to the effect that she would ask McLachlan to apologise;
        3. the Applicant stated words to the effect that she did not want Howard to talk to McLachlan about the incident;
        4. the Applicant stated words to the effect that what happened the night before was not OK, that McLachlan’s behaviour was unacceptable and she could not handle it, and that she wanted to make a complaint;
        5. Howard stated words to the effect that the issue was out of her jurisdiction and that the Applicant would need to speak with Greenwood (the company manager).

...

65. On the morning of 10 May 2014, before the matinee show for the day but following the communications between the Applicant and Howard referred to in paragraph 63, the Applicant approached the stage manager, Delker, and requested a private meeting regarding the incident described in paragraphs 47 and 48. The Applicant asked Delker that the discussion be kept confidential.
66. During the meeting with Delker, the Applicant was crying. She had a conversation with Delker with words to the following effect:

Applicant: I’m very concerned that Craig is intimidating and bullying me and others onstage. I’m scared of Craig. His behaviour was inappropriate.
Delker: That is a very serious allegation. You should think about that more carefully before you take it any further. If you do want to take it further, I will need to take it to the producers and their lawyers. Is that what you want?
Applicant: I’ll think about it. Dwan, you know what I’m talking about. You have seen it.
Delker: I have no idea what you’re talking about.

...

75. On or around 10 May 2014, after the meeting with Delker referred to in paragraph 66 above and before the matinee show, Frost visited the Applicant’s dressing room. Based on their conversation, it was apparent to the Applicant that Frost was aware of the incident pleaded at paragraphs 47 and 48 above. They had a conversation in words to the following effect:

Frost: I went in to see [McLachlan] and he launched into a story about last night. Are you okay? I can’t believe he’s being like this. We’ve never had any problems with him before.
Applicant: I’m scared of him.
She started to cry.
Frost: We can’t have that.
He hugged the Applicant.
Frost: If you need me, you can call me.

25. Still in the context of her sex discrimination claim, Ms Whelan claims forms of “victimisation” said to have been suffered as a result of the “Complaint” (SOC [84]–[92]), for which she claims that that victimising conduct forms part of the “detriments” in her employment within the meaning of s 14(2)(d) of the SD Act (SOC [93]).

Victimisation following the Complaint

84. When the Applicant returned to work a few days after the incident described at paragraphs 47 and 48 above, the crew and most of the cast had become cold towards her.
85. The Applicant took medical leave with her back injury from 2 to 17 June 2014, taking further periods of leave until she returned full-time on about 26 June 2014. She was scared to take this time off because she was fearful of what would be said about her in her absence.
86. When the Applicant returned to work from her back injury on about 17 June 2014, the behaviour of the crew and most of the cast had worsened and they had almost stopped talking to her. She felt excluded, isolated and anxious. She felt that McLachlan had turned most of the cast and crew (particularly those in management and the producers) against her in her absence. Around this time, on dates the Applicant no longer recalls, McLachlan told her that other cast members had said negative things about her.
87. Despite requesting that Delker keep the meeting referred to in paragraphs 65 and 66 above confidential, the Applicant observed that McLachlan’s general behaviour towards her changed after 10 May 2014.

Particulars

1. Prior to the incident, McLachlan would regularly prank and joke with the Applicant and the Applicant was not aware of him speaking poorly about her behind her back.
2. When the Applicant went on medical leave for her back injury, McLachlan gave a speech to the cast and crew to the effect that the Applicant was very brave and she would be very missed during her time off.
3. When the Applicant returned from her medical leave, McLachlan was cool in his behaviour towards the Applicant.
4. Knowing the way that McLachlan had spoken to her about other female cast members, the Applicant was fearful that McLachlan was a friend to her face but then undermining her behind her back.

88. Prior to the communications referred to in paragraph 63 above, the Applicant felt that she had a good relationship with Howard. After the communications, Howard became cold towards her. The Applicant and Howard never again discussed their communications about the incident described in paragraphs 47 and 48, and Howard never followed up with the Applicant or asked how she was. Howard did not speak to the Applicant again during the 2014 RHS unless it was work related.
89. Prior to the discussion referred to in paragraph 66 above, the Applicant felt that she had a good relationship with Delker. Immediately following that discussion, Delker did not look at the Applicant in the eyes, ask how she was or pay her any attention. The Applicant and Delker never again discussed their meeting, and Delker did not speak to the Applicant unless it was work related.
90. The Applicant also observed that Greenwood would walk past the Applicant’s dressing room and not say hello (which she had done previously).
91. For the remaining time of the Melbourne tour (until about 13 July 2014), the Applicant would walk into the theatre with a deep sense of anxiety as to what she was going to be greeted with. She did not feel safe in the workplace. She was constantly worried about how she would be treated and what was being said about her.
92. On the final night of the 2014 RHS in Melbourne, the Applicant was not thanked or farewelled personally by the Respondent or its representatives (despite being one of the lead actors). The producers from the Respondent and from Ambassador attended the theatre on the final night and none of them looked at the Applicant or otherwise acknowledged her. The Applicant observed a number of the producers go in to McLachlan’s dressing room and it was ordinary practice for them to visit the cast, particularly the lead roles, to congratulate and thank them at the end of a show.

26. Ms Whelan then pleads her claim of “victimisation” under the main heading, “Respondent’s Victimisation 2017 and Onwards”. She pleads that a letter from her then solicitors fell within s 94(2)(f) of the SD Act in the following way:
    107. On 8 December 2017, the Applicant’s then solicitor wrote to the Respondent about McLachlan’s treatment of her and other women during the 2014 RHS.

Particulars
Letter from Corrs Chambers Westgarth (Corrs) to Frost on behalf of the Respondent dated 8 December 2017.

108. The 8 December 2017 letter:

1. reasonably asserted the Applicant’s rights and other women’s rights under the SD Act within the meaning of s 94(2)(f) of the SD Act;
2. made allegations that McLachlan and the Respondent had engaged in acts that were unlawful by reason of a provision of Part II of the SD Act within the meaning of s 94(2)(f) of the SD Act;
3. sought an immediate response on the following questions:
   1. how the Respondent proposed to address the complaints of the women about McLachlan’s behaviour;
   2. the steps GFO proposed to take to protect the cast members of the forthcoming tour of the Rocky Horror Show; and
   3. the steps the Respondent proposed to take to ensure the safety and health of cast members of future productions.

27. Thereafter, under the same heading, Ms Whelan pleads a chronology of events, which includes the exchange of inter-party solicitor correspondence (SOC [109]–[117]). In relation to correspondence from Oldfield Entertainment’s solicitors on 12 December 2017, Ms Whelan pleads, at SOC [110]–[111]:
    110. The Respondent’s response failed to make any reference to the Applicant’s complaints about the incident on 9 May 2014 referred to at paragraphs 52, 63, 65 and 66 above.

111. The Respondent’s response subjected the Applicant to a detriment.

28. In addition, Ms Whelan pleads that Oldfield Entertainment made a public statement on 8 January 2018 (SOC [119]), which she claimed constituted a “further detriment” (SOC 120]), and that Mr Frost also issued a personal statement the following day (SOC [121]). In addition, Ms Whelan claims as a “direct consequence” of the Oldfield Entertainment’s statements, she was subjected to online trolling (SOC [123]). Ms Whelan pleads that Oldfield Entertainment, on 29 January 2018, engaged Ms Kylie Nomchong SC to conduct an investigation into the complaints, and that she does not know when Ms Nomchong SC completed the investigation nor was notified of what its outcome was (SOC [124], [130], [131]). Thereafter, she pleads that Mr McLachlan commenced, on 1 February 2018, defamation proceedings against her and sets out, amongst other things, events that occurred during that trial (SOC [125], [133]) namely:
    133. During the trial for the Defamation Proceedings, as part of McLachlan’s case, evidence was given by persons involved in the 2014 RHS, including by Greenwood and Delker, two of the senior staff members who had been appointed by the Respondent to manage the 2014 RHS. The evidence given by Greenwood and Delker confirmed to the Applicant that the Respondent did not take seriously the issues of sexual harassment, sex discrimination or bullying.

Particulars

1. Delker gave evidence that she and others at the Respondent were glib with the term “sexual harassment” during the 2014 RHS and would often refer to it as “hashtag sexual harassment”.
2. Delker gave evidence that, when another female cast member from the 2014 RHS said she would not return for the 2018 RHS and used the hashtag “#sexual harassment” after referring to “Uncle Craig”, Delker responded “Yeah. Fair. I can handle him.”.
3. Greenwood gave evidence that she was aware of both the Applicant and another female cast member raising allegations of bullying by McLachlan, and that three members of the cast had apparently said they were scared of being on stage with McLachlan, and agreed that she took no steps, as the company manager, to investigate those allegations.
4. Greenwood gave evidence that she had agreed at the time of the incident referred to at paragraphs 47 and 48 with Delker’s statement to the Applicant that her allegation of bullying was a serious one and if it was to be taken further it would be out of the hands of company management and would go to the Respondent’s lawyers.
5. Greenwood gave evidence that McLachlan was consulted by the Respondent in relation to casting for the 2018 RHS and that he had indicated “no” next to the Applicant’s name and the name of the other female cast member who had made a complaint about his behaviour in the 2014 RHS.
6. Greenwood gave evidence that a female cast member of the 2018 RHS, one of the female cast members whom the Applicant was seeking to protect, had made a complaint of sexual harassment by McLachlan on 11 January 2018.
7. Torben Brookman of Ambassador also gave evidence that McLachlan was part of the casting process for lead roles in the 2018 RHS and the executive producers of the Rocky Horror Show from both the Respondent (Zaphir) and Ambassador (Meryl Faiers) had both referred to McLachlan refusing to work with the Applicant on the 2015 production of the Rocky Horror Show.

29. Finally, Ms Whelan pleaded, at [134], what was said to comprise Oldfield Entertainment’s contravention of ss 47A and/or 94(1) of the SD Act in the following way:
    134. By its conduct described in paragraphs 84 to 92 and 101 to 133 above, the Respondent unlawfully victimised the Applicant in contravention of s 47A (to the extent it operates retrospectively) and/or s 94(1) of the SD Act.
30. For the following reasons, I do not accept that this is a case where summary judgment can be entered in Oldfield Entertainment’s favour with respect to Ms Whelan’s claim of victimisation. Whilst I accept that there is ambiguity in the pleading, it is apparent that Ms Whelan has pleaded each of the essential indicia required to prove a claim of victimisation. However, the apparent scope of that claim, evident from the content of the particulars, reveals the necessity for a pleading which, in more precise terms, sets out the material facts alleging the asserted rights under ss 47A(2)(a)–(h) or 94(2)(a)–(h) of the SD Act (or belief of the same), together with the identification of the specific conduct Oldfield Entertainment is alleged to have engaged in which is said to comprise the detrimental victimising conduct.
31. Oldfield Entertainment submits that paragraph [134] ought to be struck out and/or that summary judgment ought to be entered in its favour by reason of the following four main bases: (a) that Ms Whelan has failed to properly articulate what the alleged assertions of rights were (for example, she specifically alleges a letter written by her former solicitor to Oldfield Entertainment on 8 December 2017 (the 8 December letter) as being an assertion of a right within the meaning of s 92(2)(f) of the SD Act (see at [26] above) but does not otherwise set out the alleged assertions that pre-date that and which form part of her claim); (b) even if it is accepted that Ms Whelan has pleaded the assertion of those rights in what she describes she did in 2014 (see SOC [52]–[56], [63], [65]–[76]) and then again in 2017–18 (see SOC [107]–[108], [112] and [118]), such conduct would not constitute an assertion of a right as is required under s 47A(2) or s 94(2); (c) that, on the basis of how Ms Whelan now describes her claim in [20]–[25] of her pleadings, she no longer appears to be making any claim with respect to the conduct at [84]–[92], which is referred to at [134]; and (d) it cannot be accepted that the alleged conduct of Oldfield Entertainment (namely, the solicitor correspondence, the media statement and the online posts), when viewed objectively, could give rise to an allegation constituting a detriment within the meaning of the Act, taking into account Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22 at [4].
32. As to the first basis of attack, Oldfield Entertainment submitted that the only aspect of the pleading which identifies the grounds relied upon under ss 47A(2) or 94(2) of the SD Act is paragraph [108]. Ms Whelan pleads that the 8 December letter was an assertion of Ms Whelan’s rights within the meaning of s 94(2)(f) of the SD Act. However, in her further and better particulars, Ms Whelan contends that complaints she allegedly made in 2014 concerning intimidation and bullying (referred to in paragraphs [52]–[56] and [62]–[78]) constituted her reasonably asserting her right to not be sexually harassed or discriminated against in her employment and making allegations that she had experienced sexual harassment and discrimination (2014 informal bullying complaints). For the purposes of this strike out application, Oldfield Entertainment has considered both the 8 December letter and the 2014 informal bullying complaints as possible triggers for the alleged victimisation claim.
33. For the purposes of Ms Whelan’s victimisation claims under ss 47A(2) and 94(2), it is my view that there is a necessity for Ms Whelan to plead with some precision what she says were the acts or proposed acts she undertook (or Oldfield Entertainment’s belief of the same), and how those acts fall within those provisions. As is apparent from the above, there is a factual overlap between Ms Whelan’s claims of sex discrimination and victimisation. Ms Whelan pleads certain victimising conduct as constituting a detriment for the purpose of both her direct and indirect sex discrimination claims (under ss 14(2)(d), 5(1) and 5(2) of the SD Act) (see SOC [93] and [96]). Ms Whelan also pleads some of the same conduct for the purpose of her victimisation claims under ss 47A and 94(1) (see SOC [134])).
34. It is clear from Ms Whelan’s submissions, and in answers to questions that were raised with Ms Whelan’s counsel that, despite the pleading not saying so in express terms, Ms Whelan relies on each of the 2014 informal bullying complaints (SOC [52]–[56], [63], [65]–[76]) as constituting acts by her (or otherwise falling within the remit of the provision) from which she asserts she suffered a detriment. However, this is unclear in the pleading. For example, Ms Whelan pleads that the 8 December letter constituted the reasonable assertion of her rights and other women’s rights under s 94(2)(f) of the SD Act. As is evident from the text of the extracted victimisation provisions above, there are numerous grounds upon which a person shall be taken to have committed an act of victimisation. They include where the person has done something or proposes to, as well as where the person has not done or proposed to do one of the prescribed things but the alleged victimiser believes that the person has done or proposes to do one of those acts or things. Ms Whelan does not plead the basis upon which she says she did, or proposed to do, an act or thing protected under the provision or whether she claims Oldfield Entertainment believed that she had done or proposed to do an act or thing.
35. Oldfield Entertainment’s next, related attack on paragraph [134] arises from the same source (the failure to plead the 2014 informal bullying complaints). Oldfield Entertainment pleaded that, given the alleged assertion of a right is solely the 8 December letter, that assertion post-dates much of the alleged detrimental conduct claimed to have been caused by its actual or proposed exercise. Again, as is apparent from the above, and as identified in Ms Whelan’s particulars, she asserts that the 2014 informal bullying complaints are included as part of her victimisation claim. Accordingly, the foundation for the chronological and causation issue is not correct. However, it is apparent how this issue has arisen.
36. For example, Oldfield Entertainment submits that even if it is accepted that Ms Whelan has pleaded the assertion of those rights in 2014 (see SOC [52]–[56], [63], [65]–[76]) and then again in 2017–18 (see SOC [107]–[108], [112] and [118]), such conduct would not constitute an assertion of a right as is required under ss 47A(2) or 94(2). Given the above-mentioned imprecision, Ms Whelan has not, as yet, pleaded how her conduct falls within ss 47A(2) or 94(2). Both sections allow both for the identification of actual or proposed action said to comprise an assertion of a right as well as the respondent’s anticipation of an assertion (even if no such exercise has taken place). Accordingly, the attack is predicated on the necessity for actual assertion, which the statute does not require; it allows for the respondent to have formed the “belief” of an assertion even if it has not taken place. Furthermore, if Ms Whelan’s claim is predicated on an act or proposed act, whether it falls within the circumstances envisaged by the section is a question of fact to be determined by consideration of all the circumstances. Accordingly, this is a matter best left for determination at trial.
37. Oldfield Entertainment identified another issue with respect to paragraph [134]. It submits that Ms Whelan appears to plead that “all” conduct pleaded in paragraphs [101]–[133] constitutes victimisation, noting that those paragraphs include conduct of Ms Whelan and her representatives.
38. Ms Whelan submits that [134] does not allege that “all” conduct pleaded in [101]–[133] of the SOC constitutes victimisation. In support of this submission, she notes the use of the pronoun “it” in connection with “the Respondent” in [134], which states, “[b]y its conduct described in paragraphs 84 to 92 and 101 to 133 above, the Respondent unlawfully victimised the Applicant in contravention of s 47A (to the extent it operates retrospectively) and/or s 94(1) of the SD Act” (emphasis added). This, Ms Whelan contends, makes it plain that it is the conduct in those paragraphs of Oldfield Entertainment, as the respondent, that is pleaded as the basis for the application that Oldfield Entertainment victimised her. However, it is apparent from Ms Whelan’s response to the request for particulars that Ms Whelan is not simply claiming to have been the subject of victimising conduct which Oldfield Entertainment engaged in but also other conduct that was a direct consequence of its conduct. Therefore, I accept Oldfield Entertainment’s criticism as to the lack of precision in this regard. Ms Whelan should identify by specific paragraph reference the detrimental conduct pleaded to have been engaged in by Oldfield Entertainment and separately other conduct relied upon as being a direct consequence of its conduct (which she claims Oldfield Entertainment is purportedly liable). This will avoid prejudice, embarrassment or delay.
39. To the extent that Oldfield Entertainment alleges that, by reason of how Ms Whelan now describes her claim in [20]–[25] of her submissions, she no longer appears to be making any claim with respect to Oldfield Entertainment’s conduct at [84]–[92], which is referred to at [134], I do not accept this. It is clear from Ms Whelan’s submissions that she is maintaining that claim.
40. Lastly, it was alleged that summary judgment and/or strike out ought to be ordered with respect to each of the paragraphs said to comprise Oldfield Entertainment’s detrimental conduct (namely, the solicitor correspondence, the media statement and the online posts). This is said to be so because the alleged conduct could not constitute a detriment when assessed objectively: Georgiou at [4]. I do not accept this argument for the following reasons.
41. Oldfield Entertainment initially baldly submitted that a response to a complaint (in the form of solicitor correspondence), as distinct from some disadvantage or injury imposed on a complainant, “cannot form the basis of a valid victimisation claim”. Similarly, Oldfield Entertainment submits that pieces of solicitor correspondence regarding Ms Nomchong SC’s investigation “are simply procedural matters responding to the anonymous 8 December 2017 letter, not a ‘detriment’ to the Applicant”. This cannot be accepted. Oldfield Entertainment correctly conceded at hearing that solicitor correspondence can constitute victimisation: Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 at [449]–[454]. Accordingly, whether the correspondence could constitute a detriment requires a consideration of all the circumstances. The circumstances here, involving multiple examples of solicitor correspondence, are very different to those in Georgiou, which involved an unanswered phone call, and this is not a matter which can be the subject of a strike out application or summary judgment.
42. Oldfield Entertainment makes submissions with respect to Ms Whelan’s media interviews, pleaded at SOC [118], as forming part of what Ms Whelan alleges formed the victimisation, in circumstances where they were not an act of Oldfield Entertainment. Further, Oldfield Entertainment asserts it could never be established that there was a causal link between Ms Whelan’s decision to give interviews to the media and her making of the 8 December letter. It goes on to make a speculative submission as to Ms Whelan having been able to explore other options which may have included, for example, lodging a complaint with the AHRC and requesting that it be fast tracked. Oldfield Entertainment contends that Ms Whelan’s decision to give an interview to the media was a response to her own perception of solicitor correspondence. It is not appropriate, when availing the powers arising from these procedural vehicles, for the Court to be asked to make factual findings regarding causation and the options Ms Whelan could have explored.
43. Oldfield Entertainment criticises the reliance, for the purpose of the allegation at [134], placed on the fact of Mr McLachlan being stood down, which is pleaded at SOC [122]. Ms Whelan submitted that she is relying on all the relevant circumstances (in chronological sequence) giving rise to her claim of victimisation.
44. I accept the difficulty for Oldfield Entertainment in understanding what the specific allegations are of the detrimental conduct it has engaged in. Ultimately, I accept that Ms Whelan must identify that conduct. However, I do not accept that Ms Whelan is not able to plead contextual facts and therefore do not accept they should be struck out or give rise to a claim for summary judgment.
45. Paragraphs [119]–[121] refer to Oldfield Entertainment’s statements to the media, which it contends did no more than assert its position and accordingly cannot be advanced as detrimental conduct. Oldfield Entertainment submits that a response to allegations made against it, with its side of the story and an apology, cannot be characterised as victimisation. I reject this submission. In its own submissions, it acknowledges that, where the tone of the response is intimidatory or vindictive, it can: Taylor at [449]–[454]. Oldfield Entertainment contends that something objectively substantial is needed for it to be an act of Oldfield Entertainment that subjected Ms Whelan to a disadvantage in an objective sense. Again, I accept Ms Whelan’s submission that the Court is being asked inappropriately assume or make factual findings, and to accept Oldfield Entertainment’s contentions about its opinion concerning Ms Whelan’s state of mind. Ultimately, whether this conduct constitutes detrimental conduct is a matter to be determined at trial.
46. Oldfield Entertainment also takes issue with Ms Whelan pleading online trolling and conduct arising in Mr McLachlan’s defamation proceedings. Oldfield Entertainment submits that it did not post the online messages referred to, nor is it in any way responsible for the actions of unknown third parties over whom it had no control. A similar submission is made regarding its lack of involvement in or control over Mr McLachlan’s defamation proceedings. Oldfield Entertainment submitted that it played no part in those decisions made by Mr McLachlan, nor was it a party to those proceedings and Mr McLachlan was also not an employee of Oldfield Entertainment at the relevant time. Given the same, these paragraphs are said to not identify any act of Oldfield Entertainment that subjected Ms Whelan to a detriment. It is notable that Oldfield Entertainment has not yet filed a defence. Oldfield Entertainment relied upon no evidence supportive of the assertions it makes as to its purported lack of involvement in either. It would be inappropriate to do so. However, it also illustrates the problem for Oldfield Entertainment with this submission. These are factual questions to be determined at trial.
47. One aspect of the defamation proceedings Ms Whelan relies upon is the conduct of two senior staff of Oldfield Entertainment during that hearing (SOC [133]). Oldfield Entertainment contended that suing for defamation, without more, cannot amount to victimisation. Oldfield Entertainment also submitted that there can be no causal nexus between evidence given by the witnesses and the 8 December letter written almost five years earlier. Again, these are factual questions to be determined at trial. The Court cannot assume or make factual findings at this stage.
48. It is apparent to me that Ms Whelan’s claims are at least arguable and should not be struck out in their entirety, but rather the claims go to the purported hopelessness of the action, which I reject. For these reasons, it is my view that amendment to the pleadings is required and the allegation at paragraph [134] is insufficient, such that it falls within that category under r 16.21(d) of the Rules. The allegation at paragraph [134] is insufficient in two respects:

(1) Ms Whelan has not pleaded with sufficient precision what she says her (or believed) actual or proposed acts were, and how they fall within ss 47A(2)(f) and 94(2)(f); and

(2) Ms Whelan has not sufficiently identified, by specific paragraph reference, the detrimental conduct alleged to have been engaged in by Oldfield Entertainment or the other conduct relied upon as being a direct consequence of its actions.

Aggravated damages: Reference to paragraphs [101]–[133] in paragraph [165]

49. Oldfield Entertainment seeks to strike out and/or seeks summary judgment with respect to not the entirety of the claim for aggravated damages but rather only paragraph [165]. Paragraph [165] of the statement of claim is as follows:

165. The Applicant repeats paragraphs 84 to 92 and 101 to 134.

50. Oldfield Entertainment does not dispute, as it could not, the ability for an applicant to seek relief under s 46PO(4) of the AHRC Act for aggravated damages. Rather, Oldfield Entertainment’s contention is more limited. It contends that Ms Whelan is not able to rely on the conduct giving rise to the victimisation claim as supportive at the same time of her claim for aggravated damages. In essence, it is Oldfield Entertainment’s claim that Ms Whelan is precluded from, in effect, double claiming, relying on relevant dicta in Taylor at [530].
51. I reject Oldfield Entertainment’s claim in this regard. It is not in dispute that the Court is empowered under s 46PO(4) to award aggravated damages. I do not understand the holding in Taylor to be as Oldfield Entertainment alleges: namely, that a claim for aggravated damages must be based on differently pleaded conduct. Aggravated damages may be awarded where the manner or motive giving rise to conduct heightens the applicant’s sense of injury: Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1124 per Lord Diplock. There may be overlap between the pleaded contravention and the aggravating conduct. Any consideration about the availability of aggravated damages is premature.

Alleged ongoing requirement to recount the treatment she experienced: Paragraph [163]

52. Oldfield Entertainment contends that this head of damage should be struck out and/or summary judgment should be entered in Oldfield Entertainment’s favour, by reason that what is contained in paragraph [163] is too remote to give rise to a head of damage by which Oldfield Entertainment can be liable.
53. Paragraph [163] of the SOC is as follows:
    163. The Respondent’s failure to prevent McLachlan’s unlawful conduct as described in her Complaint and above, its inaction on her complaint following the incident of 9 May 2014 and its refusal to respond to the allegations in December 2017 in an appropriate and trauma informed manner have had ongoing adverse consequences, including:
         1. being sued personally for defamation (unlike the other women who had spoken to the media about McLachlan) in circumstances where:
            1. the statement of claim was leaked to the media prior to being served on the Applicant, so that she only became aware of the fact that she was being sued on the news;
            2. the statement of claim included various false and offensive allegations about the Applicant, including describing her as “dishonest” because she had said that was offended by McLachlan’s conduct but she herself was said to have committed indecent acts upon McLachlan, was “herself a notoriously foul mouthed person who publicly distributed offensive matter” and someone who had “expressed interest in deviant sexual practices”;

Particulars
Statement of Claim in McLachlan v Whelan Browne & Fairfax Media Publications Pty Ltd (Proceeding No. 2018/00034244) filed 1 February 2018.

2. being a party to the Defamation Proceedings for over four years, from 1 February 2018 to 20 May 2022, including being ordered by the Court to disclose diary entries and other personal documents in discovery, having her counselling records subpoenaed, being required to participate in multiple and regular interviews with lawyers about distressing and intimate experiences, and facing McLachlan in Court during the trial;
3. participating in the trial of the Defamation Proceedings, in the circumstances described in paragraph 133 above;
4. being required to participate in a police investigation into McLachlan’s treatment of her and other women employees of the Respondent;
5. having to recount her experiences between January and 19 June 2018, when the Applicant made a statement to Victoria Police.

Particulars
A copy of the police statement is reproduced in the Complaint.

6. giving evidence in the criminal proceeding on 21, 25 and 26 November 2019;
7. being cross-examined by McLachlan’s barrister in a demeaning, outdated and offensive manner;

Particulars
Reasons for decision in DPP v McLachlan, 15 December 2020, Magistrate Wallington at [751].

8. becoming aware of the findings of the Magistrate dismissing the criminal charges against McLachlan but finding her to be a credible and reliable witness and finding that the matters she alleged had in fact occurred.

Particulars
Reasons for decision in DPP v McLachlan, 15 December 2020, Magistrate Wallington at [190] and [748].

1. becoming aware that Frost only reacted to McLachlan’s treatment of her because “our friends in the media decided to do a tap dance, when all that hit the fan, we thought okay we’ve got be proactive.”

Particulars
Reasons for decision in DPP v McLachlan, 15 December 2020, Magistrate Wallington at [301].

54. Oldfield Entertainment contends that damages awarded under s 46PO(4)(d) of the AHRC Act are to compensate a victim of sexual discrimination for the loss or damage suffered because of that unlawful conduct: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 at [33] per Kenny J. It further submits that not every adverse consequence is compensable, because causation is to be understood as the man or woman in the street, not the scientist or metaphysician, would understand it: Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 281, affirmed in Richardson at [126] and [131].
55. Relying on the decision in Richardson, as well as the procedural requirements of s 37M of the FCA Act, Oldfield Entertainment submitted that it should not be required to go to the expense and trouble of having to defend this head of damage, given its perceived novelty and remoteness from any conduct which could be characterised as constituting Oldfield Entertainment’s conduct. Specific submissions were made with respect to each of the sub-paragraphs as to why it was arguable that the claims could not be made out.
56. It may be accepted that, as Oldfield Entertainment submits, not every adverse consequence is compensable, nor capable of being proved in cases of this kind. This is particularly the case where there are intervening events arising from the conduct of Ms Whelan and/or the conduct of others, including (by way of illustration) Mr McLachlan, in this proceeding. However, what Richardson makes clear at [184], citing Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6–7, is that the ultimate question (notwithstanding interventions) is whether the respondent’s wrongful act or omission, as between the applicant and respondent, as a matter of common sense and experience, can properly be said to have caused the relevant loss or damage. The Full Court’s application of the holding in Medlin in Richardson reveals that the Court’s task is a wide-ranging evaluative, factual one, and even if there is some form of intervening event for which the respondent was not responsible, this nonetheless may not break the chain of causation.
57. As a consequence, whilst I accept that there may be grave difficulties for Ms Whelan in establishing this head of damage, I am not prepared at this stage to award summary judgment with respect to it nor strike it out. It is a claim for which it could be argued that, by reason of an employer failing to protect an employee from unlawful treatment, the employer may be responsible for an ongoing requirement for an employee to recount the treatment that the person had received. An interlocutory application is not an appropriate forum to address causation with respect to loss and damage in this case (particularly where no defence has yet been filed). Many of Oldfield’s complaints are based on the assumption of factual findings not yet made. For example, it is not yet known what if any nexus there was between the acts or omissions of Oldfield Entertainment and the commencement, pleading and running of the defamation proceedings. For similar reasons, it is not known what, if any, bearing Oldfield Entertainment’s acts or omissions had on the criminal proceedings. Furthermore, the issue of causation will require an examination of evidence.

Pleadings outside jurisdiction: Paragraphs [57], [92], [133]

58. Section 46PO of the AHRC Act prescribes the process for making an application to the Court if a complaint to the AHRC has been terminated. In order for an applicant to be able to bring a claim before this Court, the applicant must have satisfied a number of requirements under the AHRC Act, including as contained in s 46PO(3), which provides:

(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

59. Section 46PO(3) operates as a constraint on the ability of an applicant to seek relief in the Court in respect of a complaint she or he had not previously raised for consideration by the Commission. However, some flexibility is permitted: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46]–[48]; Hastwell v Kott Gunning [2017] FCA 1557 at [23]–[26]. Notably, those two decisions make clear, as was previously stated by Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573 at [39], that there is capacity to allege different facts that are not in substance different from what was formerly alleged.
60. Oldfield Entertainment alleges that the allegations in paragraphs [57], [92] and [133] of Ms Whelan’s statement of claim are outside jurisdiction because they are not the same, or the same in substance, as the unlawful discrimination that was the subject of the terminated complaint, nor do they arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. At hearing, Oldfield Entertainment no longer pressed this aspect of the application with respect to [40].
61. For the reasons which follow, I reject Oldfield Entertainment’s claim in this regard. It appears to be premised on an overly narrow reading of what comprised the complaint, namely one confined to what was within the complaint form that was lodged with the AHRC (and reading down its contents) and not taking into account what in fact comprised the complaint as accepted by the AHRC.
62. What comprised the “complaint” is a question of fact. The terms of s 46PO(3) do not prescribe the “complaint” to be simply what was contained in the complaint form. If the section did, it would be inconsistent with other sections within Pt IIB that allow for the revision and amendment of what comprises the complaint up until the complaint is terminated by the AHRC: ss 46PA, 46PF(4) of the AHRC Act.
63. An assessment of what constitutes the complaint may include, without being exhaustive, consideration of what and when information was provided to the AHRC by the parties, the content of that material, including an articulation in the complaint form of what the complaint comprised, and how the AHRC described what constituted the complaint in its notice of termination and/or reasons for its decision.
64. Ms Whelan lodged her complaint with the AHRC on 8 February 2023. The originating application, as required by r 34.163(2) of the Rules, attaches a copy of the original complaint to the AHRC and a notice of termination of the complaint given by the President of the AHRC (as is required of the President under s 46PH(2) of the AHRC Act).
65. The notice of termination, dated 2 August 2023, states that “[t]his complaint alleging unlawful discrimination has been terminated under section 46PH(1B)(b) of the [AHRC Act]”. The notice of termination does not define in descriptive terms what the complaint comprises. However, it states that it attaches its reasons at Attachment A and a copy of the complaint at Attachment B.
66. Attachment B comprises the following:

(a) A complaint form on AHRC letterhead dated 8 February 2023 and comprising 13 pages;

(b) A letter from Ms Whelan’s clinical psychologist, Jo Corrigan, dated 30 July 2022 and comprising one page;

(c) A letter from Ms Whelan’s general practitioner, Dr Richard Wong, dated 25 August 2022 and comprising one page;

(d) Ms Whelan’s police statement dated 19 June 2018 and comprising nine pages, along with a diagram of the 2014 show stage and set signed by Ms Whelan, dated 19 June 2018 and comprising one page;

(e) The decision of Magistrate Belinda Wallington dated 15 December 2020 and comprising 130 pages.

67. In total Attachment B comprises 155 pages.
68. In its reasons, under the heading “The complaint”, the AHRC describes the complaint as constituting as “a collated complaint (155 pages)” being “enclosed as ‘Attachment B’ to this letter”. By contrast, when referring to what was contained in the complaint form, the reasons adopt that phrase.
69. The AHRC’s reasons for terminating Ms Whelan’s complaint refer to her participation as a witness in the criminal proceedings and note that “[t]he facts that give rise to [Ms Whelan’s] submissions rely on the investigation conducted by Victoria Police into the criminal complaints made against Mr McLachlan that were then determined by the Magistrates’ Court of Victoria”. However, the reasons do not refer directly to Ms Whelan’s police statement itself.
70. In the complaint form, Ms Whelan refers to her attached police statement in a number of places: First, under the heading “When did the alleged event(s) happen? 2014”, she states “[o]n 19 June 2018, I made a police statement about Mr McLachlan’s conduct during the show”. Secondly, she referred to the police statement in the documents listed under the heading “Supporting documents”. Thirdly, she referred to the police statement in response to the question posed by the form, “Have you made a complaint to another organisation?”, where she was asked to attach copies of documents relevant to the other complaint, including a copy of the complaint. Under this heading, Ms Whelan noted that she filed a police complaint and that she had attached a copy of her corresponding police statement.
71. The three paragraphs of the pleading said to fall outside the scope of the terminated complaint were:

(a) Paragraph [57], which made allegations of Mr McLachlan making sexualised comments about other female cast members. However, some of the specific words of the allegation appear in Ms Whelan’s police statement and Ms Whelan alleged in her complaint form that Mr McLachlan had made sexualised comments regarding her vagina and after a specific incident he would “often refer to ‘the little slit’” (complaint form page 9);

(b) Paragraph [92], which alleges an instance of victimisation said to have occurred where Ms Whelan was not thanked or farewelled on the last night of the 2014 show. However, again this allegation was contained in Ms Whelan’s police statement, and also where Ms Whelan made a generalised claim in her complaint form that after making complaints the “GFO company management changed their behaviour towards me” and she “felt that the crew and most of the cast also stopped talking to [her] after this incident” (complaint form page 10); and

(c) Paragraph [133], which alleges, as part of the victimisation claim, referring to evidence of two senior staff members of Oldfield Entertainment in the defamation proceedings which purportedly confirmed that it had not taken seriously the issues of sexual harassment, sex discrimination or bullying. In the complaint form, Ms Whelan alleges that her complaints “fell on deaf ears” (complaint form page 10) and Ms Whelan specifically referred to the evidence of those two senior staff members during the defamation proceedings (complaint form page 7).

72. Oldfield Entertainment alleged an absence of jurisdiction by picking through the particulars of the pleaded allegation. It then submitted that, where an allegation had been made, for example of sexualised comments, the absence of a particular kind of comment being made as part of the complaint deprives jurisdiction. This logic offends the holding in Dye. There was no such need.
73. It is my view that, when understanding what constituted the “subject of the terminated complaint”, it includes necessarily whatever articulation of the complaint was made before the AHRC. No submission was made by Oldfield Entertainment as to why I should not take into account aspects of the police statement, which was not only referred to in the complaint form, but where parts of its content specifically align with the allegations contained in the impugned paragraphs.
74. Furthermore, as is apparent from the above, Ms Whelan referred in general terms in her complaint form to the fact of Mr McLachlan making sexualised comments, of being ostracised after making complaints and of being victimised by reason of Oldfield Entertainment’s inaction (as became clear to her from the evidence in the defamation proceedings). The Full Court’s holding in Dye makes clear that the terms of the complaint are not to be read with the same strictures as apply to a pleading and s 46PO(3)(b) specifically contemplates and permits an applicant to allege different facts to those in the terminated complaint provided the new facts are not different in substance from those formerly alleged: Dye [43]–[49].
75. Accordingly, I reject this aspect of the application.
76. To the extent that reliance was placed by Oldfield Entertainment on Kelly v Commonwealth [2023] FCA 69, it is misconceived. Justice Farrell ultimately did not determine whether the allegation said not to form part of the complaint (at [122]) was, by operation of s 46PO(3), outside the Court’s jurisdiction. Her Honour reasoned as follows from [123] to [126]:
    123. It may be that the better view is that the supermarket claim was not part of Mr Kelly’s complaint to the AHRC notwithstanding reference to it in Dr Chee’s report included as Annexure W to the AHRC pack and the question in the complaint form “What happened” being answered “see attached”. In saying that I have regard to the terms of the AHRC’s decision dated 10 July 2019 which appears to identify the “complaint” as being the documents at “Attachment B”. As noted at [109] above, the documents comprised in Annexure B were the documents which appear to have been endorsed by the AHRC as Annexure B-1, Annexure B-2 and Annexure B-3, being respectively the complaint form and the complaint letter both dated 7 November 2018 and Mr Kelly’s email to Mr Kowal dated 5 August 2016.
    124. I note that, the next heading of the form after “What happened” was “Supporting documents” which advised:

Please attach copies of any documents that support the claims in your complaint. For example – letters, separation certificate, doctors certificate. If you cannot do this, please tell us about the documents or other information and how this information can be obtained.

125. Arguably, this paragraph put complainants and their lawyers on notice of how attachments in the nature of a consulting psychiatrist’s report would be regarded. There is a strong argument that the approach adopted by the AHRC in treating the documents set out in Annexure B as the complaint is correct and Dr Chee’s report should appropriately be treated as no more than a supporting document.
126. Having said that, I note that it is arguable that the Commonwealth was on notice of the content of Dr Chee’s report from at least 23 April 2018, because Dr Chee’s report appears to have been provided to the Commonwealth for the purpose of settlement negotiations following a Fair Work Commission conference in January 2018: see [0] above. It is true that the complaint letter is a comprehensive document prepared by lawyers who practise in workplace law and the parties to a complaint should not be required to speculate about what matters they must address, but the following matters must also be taken into account:

(a) The AHRC Act is remedial legislation; and

(b) The general nature of the supermarket incident and its claimed impact on Mr Kelly (see [110] above) was before the Commonwealth well before Mr Kelly’s complaint was lodged with the AHRC.

The information in Dr Chee’s report concerning the supermarket incident and its claimed impact on Mr Kelly was therefore available to be taken into account in any conciliation which might have taken place. Accordingly, that policy object of s 46PO(3) would not be frustrated if that information in Dr Chee’s report were to be considered to be part of the complaint or as an aggravation of the claims made at ASOC [46] and [48]-[50].

77. Furthermore, a close reading of her Honour’s decision reveals that the circumstances of that case were very different. The issue was whether an allegation contained within Mr Kelly’s treating psychiatrist’s report formed part of the complaint. Her Honour had considered, as I have done, the component parts of Attachment B to the President’s reasons for termination, at [4]. It is unclear as to whether the report was referred to specifically in the complaint form but the reasoning suggests that Mr Kelly simply wrote “see attached” within the body of the complaint form under the heading “What happened”: at [108]. Notably, her Honour appeared to accept that the separate “complaint letter” (drafted by Mr Kelly’s lawyers) formed part of the complaint. Here, by contrast, Ms Whelan specifically refers to her police statement in the complaint form and the AHRC, by reference to page length, includes it within what it describes as the complaint.
78. In Kelly the respondent submitted that “[p]rimacy must be given to the text of the complaint” (which appears to have included the solicitor’s additional letter, setting out in 34 pages the detail of the complaint) but not annexures which support the content of the complaint ([118(c)]). Ultimately, her Honour did not decide the issue but acknowledged that there was a strong argument in favour of the AHRC’s approach of treating the complaint letter but not the supporting documents as forming part of the complaint (at [125]). In forming this conclusion, her Honour had regard to the AHRC’s decision to include the complaint letter, but not the annexures to that document, in Attachment B to the notice of termination, and the AHRC’s decision in the body of the notice of termination to identify the documents in Attachment B as forming the “complaint” (at [125]). In this case, it appears that the AHRC has adopted an approach of accepting that the police statement (which sets out in detail the alleged conduct) formed part of the complaint.

Conclusion

79. By reason of the foregoing, paragraph [134] of the applicant’s statement of claim filed on 9 November 2023 is struck out pursuant to r 16.21(d) of the Rules. I will grant leave for Ms Whelan to re-plead that part of the victimisation part of her claim pursuant to ss 47A and 94 of the SD Act.
80. I note both parties sought to make submissions as to costs. Accordingly, I will make timetabling orders in this regard.

Associate:

Dated: 12 March 2024