Saje v Union For Progressive Judaism Inc. & Ors (No.4) [2020] FCCA 341 (19 February 2020)

Last Updated: 29 April 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAJE v UNION FOR PROGRESSIVE JUDAISM INC. & ORS (No.4)

[2020] FCCA 341

Catchwords: HUMAN RIGHTS – Application alleging contravention of the Sex Discrimination Act 1984 (Cth) – whether the respondents discriminated against the applicant on the grounds of sex contrary to the Act – whether the Respondents unlawfully victimised the applicant – no contravention or unlawful conduct made out – application dismissed.

Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.45PH, 46PO, 49B Sex Discrimination Act 1984 (Cth), ss.4, 5, 22, 94

Cases cited: Margan v President, Australian Human Rights Commission [2013] FCA 109 Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 Von Schoeler v Alan Taylor and Company Ltd t/as Boral Timber [2018] FCCA 3932

Applicant:

LEENA SAJE

First Respondent:

UNION FOR PROGRESSIVE JUDAISM INC.

Second Respondent:

JOEL MENDELSON

Third Respondent:

STEPHEN FREEMAN

Fourth Respondent:

JOCELYN ROBUCK

Fifth Respondent:

STEVE DANENBERG

Sixth Respondent:

ROGER MENDELSON

File Number:

PEG 715 of 2017

Judgment of:

Judge Street

Hearing date:

19 February 2020

Date of Last Submission:

19 February 2020

Delivered at:

PERTH

Delivered on:

19 February 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms P Giles

Solicitors for the Respondents:

MinterEllison

ORDERS

(1) The application in these proceedings is dismissed.
(2) The applicant pay the respondents’ costs on a party/party basis as taxed or agreed.

DATE OF ORDER: 19 February 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH

PEG 715 of 2017

LEENA SAJE

Applicant

And

UNION FOR PROGRESSIVE JUDAISM INC

First Respondent

JOEL MENDELSON

Second Respondent

STEPHEN FREEMAN

Third Respondent

JOCELYN ROBUCK

Fourth Respondent

STEVE DANENBERG

Fifth Respondent

ROGER MENDELSON

Sixth Respondent

REASONS FOR JUDGMENT

1. This is an application for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the HRC Act”) and is within the Court’s jurisdiction under s 49B of the HRC Act.
2. The points of claim filed by the applicant allege a contravention of s 22 of the Sex Discrimination Act 1984 (Cth) (“the SD Act”) in relation to alleged unlawful conduct, and a contravention of s 94 of the SD Act in respect of alleged victimisation.
3. The points of claim filed by the applicant refer to allegations of alleged discrimination in respect of the provision of complaint services to the applicant and includes what are clearly extraneous allegations and not material facts in respect of the alleged contraventions.
4. The deficiency of the pleading, nonetheless, was one in respect of which the matter was allowed to proceed to a final hearing as the applicant is unrepresented.
5. The applicant sought to rely upon five affidavits. Almost the entirety of the affidavits was inadmissible and was the subject of rulings rejecting the same.
6. There is no affidavit evidence by the applicant adduced in support of particular conduct occurring relating to the alleged provision of services that could support either indirect or direct discrimination.
7. There was no evidence adduced to support conduct in respect of pt II that could support the allegation of victimisation advanced under s 94 of the SD Act.
8. As a result of the Court rulings, the respondent did not go into evidence and did not cross-examine the applicant. That is entirely understandable because the applicant had adduced no proper evidence to establish the underlying facts supporting the allegation.
9. There has been admitted into evidence certain correspondence, but that does not identify either the provision of services by the respondents to the applicant, let alone conduct the subject of differential treatment of the applicant because of her sex, nor is there any evidence to support the allegation of unlawful conduct under pt II and victimisation falling within s 94 of the SD Act.
10. For these reasons, the applicant has failed to establish any contravention of s 22 of the SD Act. The applicant has failed to establish that the respondents provided the applicant with services. The applicant has failed to establish that the applicant was treated differentially because of her sex in respect of any services, even if there was evidence to support the alleged making of complaint being capable of being characterised as a service, which it is not, nor for the reasons given, has the applicant made out any unlawful conduct and victimisation under s 94 of the SD Act.
11. At the commencement of the hearing, the Court dealt with the outstanding applications in the case and explained to the applicant that it proposed to deal with the applications in the case and then deal with the evidence and then hear submissions.
12. The applicant put submissions asserting conduct that was not the subject of proof before the Court, and put submissions relating to an alleged contravention of s 28 of the SD Act, and alleged unlawful conduct thereunder, which was not the subject of any pleaded case against the respondents.
13. Nothing said by the applicant from the bar table identified any basis upon which the Court could find the alleged contraventions of s22 and/or s 94 of the SD Act made out.
14. It is apparent from the admissions made in the pleading that the applicant, in around February 2015 until 23 October 2015, was studying a course known as ‘Introduction to Judaism’ at Temple David, a synagogue located in the suburb of Mount Lawley in Perth, Western Australia. The evidence does not establish that at any time, the applicant was a member of the congregation of Temple of David.
15. The first respondent is an incorporated registered association in the State of Victoria and provides resources and services in relation to the development of progressive Judaism in Australia, New Zealand and Asia. It is apparent that that association is governed by an executive committee, the members of whom, being the second to sixth respondents, were joined to these proceedings by the applicant.
16. It is apparent that the applicant wrote certain letters to the respondents in October 2015 and November 2015.
17. The applicant made a complaint to the Australian Human Rights Commission on 14 March 2017 and the complaint was terminated under s 46PH(1)(c) of the HRC Act, on the basis that it was perceived to be lacking substance.
18. These proceedings were then commenced on 21 December 2017.
19. Section 5 of the SD Act is as follows:

Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.

20. Section 22 of the SD Act is as follows:

Goods, services and facilities
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section binds the Crown in right of a State.

21. The definition of services (in s 4 of the SD Act) is as follows:

"services" includes:
(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;
(b) services relating to entertainment, recreation or refreshment;
(c) services relating to transport or travel;
(d) services of the kind provided by the members of any profession or trade; and
(e) services of the kind provided by a government, a government authority or a local government body.

22. Section 94 of the SD Act is as follows:

Victimisation

(1) A person shall not commit an act of victimization 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 victimization 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 document 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 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 (g), 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 that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.

23. The Court has taken into account the principles identified in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251; in relation to the operation of s 5 of the SD Act, and the observations of the learned Jago J at [23] in Margan v President, Australian Human Rights Commission [2013] FCA 109. The Court has also taken into account the submissions advanced by both parties, including the respondents’ submission referring to the observations by Judge Jarrett in Von Schoeler v Alan Taylor and Company Ltd t/as Boral Timber [2018] FCCA 3932. The Court accepts the respondents’ submissions.
24. There is no evidence to support any finding of any of the respondents providing a complaint process or complaint handling service, or the use of facilities for that purpose, to the applicant, and the Court takes into account in that regard that the applicant was not a member of the first respondent. No evidence has been adduced of any male non-member being provided with complaint handling processes or complaint handling services or the use of facilities for those purposes.
25. The Court accepts the respondents’ submission that no unlawful conduct under s 22 of the SD Act has been made out against the first respondent.
26. Equally, there is no evidence to support a finding that any of the second to sixth respondents provided a complaint handling process or complaint handling service to any person or organisation. No unlawful conduct as alleged, or breach of s 22 of the SD Act, is made out in respect of the second to sixth respondents.
27. Even if there had been a finding, as the Court has indicated, that any of the respondents could be described as providing such a service, there is no basis on the evidence before the Court to find any discrimination of the applicant on the basis of the applicant’s sex in respect of that alleged service. There was no less favourable treatment by the applicant than any other person who is not a member of the first respondent.
28. Taking into account the requirement of s 5 of the SD Act in identifying an appropriate comparator for the purpose of determining the true or real reason for different treatment, there has been no different treatment identified in respect of a non-member of the first respondent. There is no basis to find that the applicant has been subject to any differential treatment because of her sex, or that a contravention of s 22 of the SD Act is made out against any of the respondents.
29. In relation to s 94 of the SD Act, the applicant needed to establish that she has been subjected to a treatment or threatened with a detriment, and on the ground that the applicant has made an allegation of conduct which is unlawful by reason of pt II of the SD Act. No evidence has been established that the applicant has been subjected to any detriment or threatened with any detriment, let alone any such conduct on the ground that she made a complaint under pt II of the SD Act.
30. As no contravention or unlawful conduct has been made out by the applicant, the applicant is not entitled to any relief.

I certify that the preceding thirty (30) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 February 2020 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 29 April 2020