Supreme Court New South Wales

• Medium Neutral Citation: Styles v Clayton Utz (No 2) [2011] NSWSC 1219
• Hearing dates: Friday 7 October 2011
• Decision date: 11 October 2011
• Before: McCallum J

Decision

Please note that these proceedings are presently listed for trial with a jury in February 2012. This judgment deals only with procedural matters.

Plaintiff's application for leave further to amend her amended and consolidated statement of claim dismissed; paragraphs 41E(ix) and 44(a) of the amended and consolidated statement of claim struck out; plaintiff's application for orders setting aside three subpoenas addressed to former employers dismissed

• Catchwords: HUMAN RIGHTS - discrimination - sexual harassment - unwelcome conduct of a sexual nature - whether conduct alleged capable of amounting to conduct of a sexual nature in relation to the plaintiff; PROCEDURE - pleadings - application for further leave to amend - application to have parts of amended pleading struck out as being inconsistent with earlier leave; PROCEDURE - subpoenas - application to set aside
• Legislation Cited: Australian Human Rights Commission Act 1986 (Cth); Sex Discrimination Act 1984 (Cth)
• Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; Styles v Clayton Utz [2011] NSWSC 1022
• Category: Interlocutory applications
• Parties: Bridgette Styles (plaintiff); The partners of Clayton Utz listed in the schedule to the statement of claim (defendants)
• Representation: Plaintiff in person; S Dawson (defendants); Freehills (defendants)
• File Number(s): 2011/66430
• Publication restriction: As to naming people referred to in argument in these proceedings, see judgment of McCallum J given 7 June 2011 and the non-publication order made that day as varied on 14 October 2011.

Judgment

1 HER HONOUR: These are proceedings under the Australian Human Rights Commission Act 1986 (Cth). The proceedings were transferred to this Court by the Federal Court by consent in February of this year pursuant to section 5(4) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). They are listed for hearing early next year.

2 The plaintiff, Ms Bridgette Styles, alleges that she was subjected to sexual harassment and victimisation in contravention of the Sex Discrimination Act 1984 (Cth) whilst she was employed as a solicitor by the defendant firm, Clayton Utz.

3 On 5 September 2011, I determined a series of disputes between the parties as to the pleadings and granted leave to the plaintiff to file an Amended and Consolidated Statement of Claim in accordance with my reasons published that date: Styles v Clayton Utz [2011] NSWSC 1022.

4 The Amended and Consolidated Statement of Claim was filed on 19 September 2011. There are now three further applications before the Court, which the Registrar listed before me sitting as Duty Judge last week (presumably in light of the fact that I have been case managing the proceedings).

5 Two of the applications relate to the amended pleadings. The first is the plaintiff's Notice of Motion filed on 19 September 2011 (the very day on which the amended pleading was filed) seeking leave to make four further amendments to the amended pleading.

6 Ms Styles, who represented herself on the hearing of the Motions, adduced no evidence in support of the application. She indicated that the amendments as to which leave is sought flow directly from the terms of my earlier judgment, particularly at [201], [205], [210] and [227].

7 In order to understand Ms Styles' contentions it is necessary briefly to summarise the context in which I reached the conclusions there expressed. Ms Styles' sexual harassment claim is founded in part on the display of a montage of photographs of another employee of Clayton Utz, Mr Luis Izzo, and a framed photograph of that gentleman.

8 At an early stage of my case management of these proceedings, I enquired during one of the hearings before me whether it was alleged by Ms Styles that the montage and the framed photograph were sexualised in themselves or whether the allegation of sexual harassment based on those items arose only from the context in which they were allegedly put before Ms Styles. The context includes her allegation that, over a period of time whilst she was employed by Clayton Utz, rumours abounded as to whether she had had sexual intercourse with Mr Izzo. As explained in my earlier judgment, her complaint comprehends both the proposition that those rumours were circulated at a time before Ms Styles had in fact had sexual intercourse with Mr Izzo and, separately, the allegation that people asked her whether that was the case at a time after she had in fact engaged in a single instance of sexual intercourse with him.

9 When I made the enquiry to which I have referred, Ms Chrysanthou of counsel, who at that time was appearing for Ms Styles in the proceedings, responded by saying that Ms Styles would allege that the two items (the montage and the framed photograph) were sexualised in themselves. However, Ms Chrysanthou frankly acknowledged that no particulars had been provided in the pleading or otherwise as to how that contention was sought to be sustained and indeed the contention itself was not made in terms.

10 Ms Styles subsequently propounded a form of proposed amended pleading. The version of the proposed amendment upon which I was ultimately asked to rule was dated and circulated on 25 August 2011, the day before I heard argument as to whether Ms Styles should have leave to amend.

11 Paragraph 25 of the proposed amended pleading addressed the montage, providing a series of contentions as to ways in which it was alleged to be a sexualised portrayal of Mr Izzo. The framed photograph was addressed in paragraph 27(h) of the proposed amended pleading, which alleged that the photograph "was understood to have sexual connotations within the Workplace Relations Group" of Clayton Utz. That contention was, in turn, sought to be sustained by reference to two emails circulated within that group.

12 The montage and the framed photograph were addressed at [201] to [207] and [208] to [215] respectively of my earlier judgment. Relevantly for present purposes, I upheld the defendants' objections to paragraphs 25 and 27(h) of the proposed amended pleading principally on the basis that Ms Styles had not pleaded an essential element of a complaint based on the alleged intrinsic sexualised nature of the two items, namely, that the alleged sexualised aspect of the conduct complained of was perceived by Ms Styles, and made the conduct unwelcome to her, at the relevant time and not merely in hindsight: at [205] and [210] respectively. The foregoing remarks are intended as a summary only. For a full understanding of my reasons for acceding to the defendants' objections, reference should be made to my earlier judgment.

13 As already indicated, on the very day of filing the Amended and Consolidated Statement of Claim in accordance with the leave granted, Ms Styles also filed a Notice of Motion seeking further to amend the pleading in four respects. Orders 1 to 3 sought in the Motion flow directly from the matters I have just summarised.

14 The first prayer for relief in Ms Styles' motion seeks an order in the following terms:

1. Leave to insert a new paragraph 25A into the Amended and Consolidated Statement of Claim, filed 19 September 2011, in response to paragraphs 201 and 205 of the judgment of the Honourable Lucy McCallum delivered 5 September 2011:

25A The Montage appeared to the plaintiff to be a joke lampooning Izzo's reputation within the Sydney Office as a man who had slept with a number of colleagues.

Particulars

The plaintiff drew this conclusion based on her observations that:

(i) Izzo's reputation, as a Casanova, was based on his conduct in boasting about having slept with colleagues including her:

(ii) the Montage was located outside her office:

(iii) the Montage contained no apparent reference to Izzo's work as a solicitor;

(iv) the Montage contained, instead, a text bubble stating: "[We're] pretty sure there's a lot more to life than being really, really, ridiculously good looking [Luis] We hope you plan on figuring out what that is"; and

(v) the Montage contained a photograph of Izzo making what the plaintiff understood to be a sexualised hand gesture:

Particulars

The hand gesture is formed by extending the index and little fingers while holding the middle and ring fingers down with the thumb.

15 Ms Styles submitted as to that application and the other two relating to the montage and the framed photograph that the amendments should be allowed on " Aon grounds", a reference to the grounds considered in the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009). Ms Styles referred in particular to the importance of the new contentions to her claim and the lack of prejudice to the defendants. As to the montage, Ms Styles made the discrete complaint that she had always expected it would be in evidence and that its sexualised nature would thereupon be self-evident. She contended that it was only upon commencing the proceedings that she learned that the defendants had not retained that item.

16 As a footnote to that last submission I should say that there is now in evidence in the proceedings on a previous interlocutory application an image of the montage, albeit one that is of poor quality and difficult to inspect with the closeness perhaps demanded by the issues raised in these proceedings.

17 As to the contention that there would be no prejudice to the defendants in allowing the present application, Ms Styles points to the fact that her complaints as to the alleged intrinsic sexual nature of the two items have previously been detailed in her complaint to the Human Rights Commission. That submission overlooks the fact, however, that those matters have not previously been brought forward as discrete allegations of sexual harassment to be determined in the present proceedings.

18 Mr Dawson, who appeared for the defendants on the present applications, submitted that the relief sought in orders 1 to 3 of the plaintiff's motion appears to be based on a misreading or an incomplete reading of my earlier judgment. He noted that the proposed amendments arise from my remarks as to the plaintiff's failure to plead that she understood the items to be of a sexual nature at the time she saw them. The proposed amendments, expressly brought forward in response to those remarks, allege that the plaintiff did in fact understand those items in that way at the relevant time.

19 Mr Dawson submitted, however, that the plaintiff's application overlooks the fact that, in addition to being perceived as unwelcome conduct of a sexual nature, it is an essential element of a claim of the kind sought to be maintained by the plaintiff that the conduct complained of in fact be conduct of a sexual nature in relation to her (as to which see [59] and [203] of the earlier judgment).

20 Mr Dawson submitted that the proposed amendments should not be allowed because the matters now identified as to the characterisation Ms Styles placed on the two items (leaving aside any consideration of the context in which they are alleged to have been put before her) are not objectively capable of amounting to conduct of a sexual nature in relation to her.

21 Separately, Mr Dawson noted that the items have not been pleaded as such, even in the most recent proposed amendment. However, it is implicit in the proposed amendments that the features the plaintiff says she identified at the time are the features of the two items on which she would rely in support of the contention that the display of those items amounted to conduct of a sexual nature in relation to her. I have approached Ms Styles' application on that premise.

22 I note further that, for present purposes, the plaintiff has only to satisfy the Court that the items are capable of being regarded as conduct of a sexual nature in relation to her within the meaning of section 28A of the Sex Discrimination Act . She does not need at this stage to satisfy me that those items do in fact amount to conduct of a sexual nature in relation to her.

23 With those considerations in mind, I turn to consider proposed amended paragraph 25A of the pleading set out above, which alleges that the montage was perceived by Ms Styles to be a joke lampooning Mr Izzo's reputation within the Sydney Office of Clayton Utz as a man who had slept with a number of colleagues.

24 I have concluded that, on an objective test, the matters sought to be relied upon in that paragraph are not capable of sustaining the allegation that the montage is in itself conduct of a sexual nature in relation to the plaintiff.

25 In saying so, I am not considering the placement of the montage in the context of the other conduct complained of by the plaintiff. It has been the position of the defendants since the outset of my case management of these proceedings that those allegations will be fully defended at a final hearing. However, the defendants have not sought to have struck out as unsustainable the allegation in paragraph 30 of the Amended and Consolidated Statement of Claim that the placement of the montage and the framed photograph in all the circumstances pleaded (including the context of sexual rumour and innuendo as to the prior relationship between Ms Styles and Mr Izzo) was capable of amounting to unwelcome conduct of a sexual nature in relation to the plaintiff within the meaning of the Act.

26 The issue I am presently concerned with, as I have endeavoured to explain perhaps at unnecessarily great length, is simply whether the montage and the framed photograph are in themselves, and divorced of that context, capable of amounting to conduct of a sexual nature, which is the contention I understand to be brought forward by the present application (in response to my judgment, as identified in the motion).

27 In my view it is not open to the plaintiff to make that contention on the strength of the particulars proposed in amended paragraph 25A. As already noted, the allegation is that the plaintiff took the montage to be "a joke lampooning Mr Izzo's reputation within the Sydney office as a man who had slept with a number of colleagues". That allegation imports matters extrinsic to the montage and is not based on the appearance of the montage itself. There are only two references in the particulars relied upon by Ms Styles to the content of the montage itself and I do not think they are objectively capable of bringing the montage within the description in the Act of "conduct of a sexual nature" in relation to Ms Styles.

28 Separately, as I have indicated, I have now before me a version of the montage and I do not see anything in it that is objectively capable of meeting the description contended for by the plaintiff.

29 The allegations in respect of the framed photograph suffer from the same difficulty. The second prayer for relief seeks an order in the following terms:

2. Leave to insert a new paragraph 27(ff) into the Amended and Consolidated Statement of Claim, filed 19 September 2011, in response to paragraphs 205 (sic) of the judgment of the Honourable Lucy McCallum delivered 5 September 2011:

The framed photograph:

(ff) was perceived by the plaintiff to be a joke of a sexual nature, implying she was "in love" with Izzo, because people generally only keep, in expensive looking photograph frames in their offices, flattering portraits of adults whom they "love," namely their romantic partners or spouses .

30 In my view the contention that the display of an anodyne photograph is capable of taking on a sexual character (so as to amount to in itself to conduct of a sexual nature) on the ground of the perception pleaded is objectively unsustainable.

31 Prayer 3 in the Notice of Motion seeks an order in the following terms:

(g) [the framed photograph] was recognized by the plaintiff to be a substantially enlarged A4 copy of Izzo's 'Clayton Utz intranet photograph", which fact reinforced her perception it was a sexualised joke, given that said intranet photograph was the subject of an email (the "Manwhore Email" ) which, to the knowledge of the plaintiff at the time:

(a) had been sent by members of the Workplace Relations Group from Izzo's email address:

(b) to a significant number of other employees:

(c) as a parody of Izzo's sexual desirability, in that the plaintiff was aware it contained words to like effect of those that it does contain, namely:

a. / have an intranet photograph to die for;

b. / am THE Italian Stallion:

c. / have the best hair in all of Sydney;

d. if I see you in the lift, I'll grace you with a head nod...But please don't come up to me at work drinks - I'll just pretend I don't know you;

e. in metro-manwhoreness, Luis "Greasy" Izzo, Solicitor/ Workplace Relations/Clayton Utz.

32 The gist of the proposed amendment is again the contention that the framed photograph, which is otherwise anodyne, assumed the characterisation of being conduct of a sexual nature by reason of its having been the subject of an e-mail circulated within the Workplace Relations Group.

33 It should be noted that the contentions sought to be included by the amendment relate primarily to the e-mail and not to the photograph. Nothing in the proposed new paragraph 27(g) is, in my view, objectively capable of sustaining the contention that the photograph is in itself an item the display of which is capable of amounting to conduct of a sexual nature. As I observed at [210] of my earlier judgment, the proposition that a standard head and shoulders shot of a man in a suit, whether or not placed in an expensive-looking photograph frame, could have sexual connotations or be understood to be a sexualised joke is in my view untenable.

34 The fourth prayer for relief in the Notice of Motion relates to the plaintiff's victimisation claim. The plaintiff seeks an order in the following terms:

4. Leave to amend paragraph 44 of the Amended and Consolidated Statement of Claim, filed 19 September 2011, in response to paragraphs 227 (sic) of the judgment of the Honourable Lucy McCallum, delivered 5 September 2011:

44 In the premises, in paragraphs 37, 38, 39 to 43, the Defendant subjected the Plaintiff to a detriment, namely the Defendant:

(a) did not properly investigate the Montage and the Framed Photograph

Particulars

The Defendant failed to but should have:

(i) identifi e d th e matters set out in paragraphs 26, 26A, 27 and 2-5C asked the plaintiff what her concerns were, rather than asking her to respond to Izzo's allegations about the nature of and motivation behind her concerns and other extraneous matters, set out in the File Note;

35 In my earlier judgment at [227], I upheld an objection taken by the defendants (in respect of the document to which I referred to as the new pleading) to "paragraph 44(a) [together with particulars (i)-(vii)]".

36 The plaintiff complained that my ruling on that part of the pleading was ambiguous in that it was not clear whether I had ruled as to the whole of paragraph 44(a) (including all of the particulars). Confusion in that respect may have arisen from the existence of an earlier version of the proposed amended pleading (circulated on 24 June 2011) in which particulars (i) to (vii) were labelled (a) to (g). The plaintiff noted that there had been no amendment by her to paragraph 44(a) of the pleading but only to 44(a)(i) (formerly 44(a)(a)) and submitted that, if ruling on the balance of the paragraph, I ought to have addressed the application as the defendants' application to strike out an allegation that had always stood on the pleading.

37 There may be some force in the plaintiff's complaint to the extent that the focus of my earlier ruling was the inclusion of the words "the plaintiff's concerns in relation to the montage and the framed photograph" (which concerns, in turn, were identified in particular 44(a)(i)). I did, however, have in mind, in acceding to the defendants' objection to the whole of the paragraph, the logical difficulty with the plaintiff's claim (with or without those words) that the gist of the complaint accuses the defendants, as it appears, of failing to investigate something that was never brought to their attention.

38 At the hearing of the application to amend last week I pressed Ms Styles as to whether she contends that she put the defendants on notice of any concerns in fact held by her on the strength of which the defendants ought to have "properly" investigated the montage and the framed photograph.

39 Without wishing to derogate from the detailed submissions put by Ms Styles in response to that question, in short the answer was that she had not expressed any such concerns at the relevant time, for fear of the very victimisation of which she now complains.

40 The gist of the amendment now sought to be made effectively acknowledges the absence of any such complaint and seeks to cure that difficulty by alleging that the defendants ought to have asked the plaintiff to identify her concerns at the relevant time. In the result, however, the logical difficulty remains, as was in effect put at the earlier hearing, that whether or not the words "the plaintiff's concerns in relation to" [the montage and the framed photograph] are included or excluded from paragraph 44(a) of the pleading, nowhere is it explained what concerns the defendants ought to have investigated or why.

41 I have thus effectively already considered this issue on the premise contended for by the plaintiff, namely, the principles that apply to a strike out application rather than an application for leave to amend. I remain of the view that the complaint in paragraph 44(a) (which includes the particulars to that paragraph) is incapable of being sustained, for the reasons outlined.

42 That disposes of the plaintiff's Notice of Motion. The defendant's motion sought to have two paragraphs of the Amended and Consolidated Statement of Claim filed on 19 September 2011 struck out as being inconsistent with or not included within the leave granted. The second order sought is comprehended within the ruling I have just given in respect of the plaintiff's application for leave to amend paragraph 44.

43 The first prayer for relief in the defendants' motion seeks an order striking out paragraph 41E(ix) of the amended pleading as filed. Paragraph 41E sets out the particulars sought to be relied upon by the plaintiff in support of the contention, as an element of the tort of intentional infliction of mental harm, that in publishing the file note, Mr Izzo was motivated by malice and that the file note was created by him for an improper purpose.

44 Paragraph 41E(ix) recites the allegation that one of Mr Izzo's alleged improper purposes was a "personal obsession he and Day and Rowan had with the plaintiff".

45 It may be observed at the outset, as complained by the defendants in correspondence sent in response to the filed pleading, that to the extent that the allegation includes reference to the state of mind of Mr Day and the person referred to as Rowan (who I believe is Mr Mawa), those allegations are irrelevant and embarrassing and have no place in the pleading.

46 Separately, Mr Dawson submitted that the allegations are new and are outside the matters previously raised in support of the malice allegations in the defamation proceedings: see [223] to [225] of my earlier judgment.

47 The complaint that the allegation is new is perhaps not a reason for striking out the particular. I think there is force in the plaintiff's submission that the leave granted extended to permitting her to plead any matters relied upon by way of improper purpose, notwithstanding anything her counsel may have said at a previous hearing. The difficulty, however, is that I do not think the matters pleaded are capable of sustaining the contention of improper purpose. The pleading identifies no rational connection between the personal obsession alleged and the improper purposes contended in paragraph 41E.

48 Ms Styles noted in correspondence that the very nature of an obsession is that it is irrational. However that is no substitute for understanding the way in which a case is put. It is simply impossible to understand, from the matters pleaded, what case is put as to how the alleged obsession referred to prompted the creation of the file note and for what improper purpose. I think the allegation is embarrassing for that reason and should be struck out. That disposes of the defendants' Notice of Motion.

49 The third application before the Court is the plaintiff's application to have a number of subpoenas issued at the request of the defendants set aside. That application may be disposed of briefly.

50 When the notices of motion were first returnable before me on Tuesday last I directed the plaintiff to identify her objections to the subpoenas in correspondence. Her letter in response to that direction is part of exhibit B on the present application.

51 Part of the plaintiff's objection to the subpoenas relates to their allegedly being unnecessarily wide and in oppressive terms. The parties under subpoena, however, have taken no such objection. Subject to the need to be satisfied that the subpoenas have a legitimate forensic purpose, that disposes of that complaint.

52 I have given careful consideration to the terms of the subpoenas and I am satisfied that they do have a legitimate forensic purpose, as submitted on behalf of the defendants. The documents sought plainly relate to the damages claimed in the proceedings. Further, the plaintiff by her earlier application to amend has introduced into these proceedings a wholly new cause of action, which is the tort of intentional infliction of mental harm. The further allegations made by her as to the damages she allegedly suffered as a result of Mr Izzo's publication of the file note plainly introduce issues to which the documents sought in the subpoenas might be relevant. For those reasons I decline to set aside any of the subpoenas.

The orders are:

1. That the plaintiff's Notice of Motion filed 19 September 2011 be dismissed

2. That paragraphs 41E(ix) and 44(a) of the Amended and Consolidated Statement of Claim be struck out.

3. That the plaintiff's Notice of Motion filed 4 October 2011 be dismissed

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Decision last updated: 14 October 2011