Abuse of Process: Eliezar v University of Sydney  FCA 1045
The Federal Court of Australia has dismissed a former lecturer’s claims of unlawful sex and pregnancy discrimination after failing to join four academics in the claim, concluding that the proceedings constituted an abuse of process.
In March 2014 Mrs Supriya Eliezer, a former Associate Lecturer of Accounting and a PHD student at the University of Sydney, made a complaint to the Australian Human Rights Commission (AHRC) complaining that she had been discriminated against on the basis of her sex and pregnancy. She claimed the University was responsible for the conduct of its academics against her which included:
- Treating her maternity leave with ridicule;
- On her return to work, imposing onerous workloads with unrealistic deadlines;
- Failing to cooperate with a treating doctors’ return to work plan; and
- Failing to provide adequate support and references to enable her to secure alternative employment.
The AHRC terminated the complaint on the basis that the alleged unlawful discrimination took place more than 12 months before the filing of the complaint.
In October 2014 Mrs Eliezer commenced proceedings in the Federal Court against the University. Mrs Eliezer also joined the four academics in the claim.
Mrs Eliezer alleged that she suffered psychological injury and harm, leading to her diagnosis with a major depressive disorder and her husband being forced to provide her with full time care for several years.
Mrs Eliezer sought an apology as well as $425,000 for compensation for past earnings, $680,000 for future earnings, $152,000 for loss of promotions, general and exemplary damages from the University totalling $3 million and $300,000 from each of the four academics.
In May 2015, the University and the academics made an interlocutory application for summary dismissal of proceedings on two grounds:
- The Court lacked the jurisdiction to determine the proceedings against the academics. This was due to the fact the academics were not Respondents to the original complaint lodged to the AHRC; and
- The significant delay of almost seven years in commencing proceedings against the Respondents, along with other factors, which were alleged to amount to an abuse of process.
The Court found that section 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) provides that a person can only bring proceedings in the Federal Court against people who were named in a complaint to the AHRC. As Mrs Eliezer had not joined the four academics in the AHRC claim, she could not then name them as Respondents in her Federal Court claim.
Justice Perry dismissed Mrs Eliezer’s arguments that the identity of the Respondent is a mere technicality, and further, that mentioning the Respondents in the complaint to the AHRC was adequate. Perry J reasoned, “It is not sufficient that an individual is implicated in the conduct of which complaint is made to the Commission in order to establish that she or he is a Respondent”.
The Court also found the proceedings were oppressive and an abuse of process, considering:
- The extent of the delay, in both making the complaint to the AHRC and notifying the Respondents of the claims against them;
- The prejudice caused by the delay in relation to the identification and location of relevant documents and recollection of witnesses;
- The absence of any adequate explanation for the delay; and
- The inconsistency between Eliezer’s workers compensation application which had been made in 2008 and alleged psychological injury as a result of “bullying and general harassment” and proceedings in the Federal Court, alleging psychological injury as the result of “sex and pregnancy discrimination” by the Respondents.
The Court ordered that the proceedings be summarily dismissed, with costs.
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