Supreme Court New South Wales

• Medium Neutral Citation: Styles v Clayton Utz (No. 3) [2011] NSWSC 1452
• Hearing dates: 7 June 2011 30 June 201126 August 2011
• Decision date: 05 September 2011
• Before: McCallum J

Decision

Plaintiff granted leave to file an amended statement of claim in accordance with these reasons; plaintiff's application to have parts of the defence struck out dismissed; defendants ordered to provide further particulars of the defence in accordance with these reasons; particulars 5(i)(e), (f) and (g) and paragraph 24(a) of the reply struck out.

• Catchwords: HUMAN RIGHTS - discrimination - sexual harassment and victimisation - unwelcome conduct of a sexual nature - how judged -requirement that the conduct be unwelcome to the complainant - vicarious liability - defence under s106(2) of the Sex Discrimination Act 1984; PROCEDURE - pleadings - application to have particulars struck out - application for leave to amend statement of claim
• Legislation Cited: Australian Human Rights Commission Act 1986 (Cth); Civil Procedure Act 2005; Federal Court Rules 1976; Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth); Sex Discrimination Act 1984 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Aldridge v Booth (1988) 80 ALR 1; Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009); Baldry v Jackson (1976) 1 NSWLR 19; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Clark v Ainsworth (1996) 40 NSWLR 463; Clyne v New South Wales Bar Association [1960] 104 CLR 186; Dye v Commonwealth Securities Ltd [2010] FCA 720; Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118; Elliott v Nanda [2001] FCA 418; Fraser-Kirk v David Jones [2010] FAC 1060; Gama v Qantas Airways Ltd (2006) 195 FLR 475; General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217; Horman v Distribution Group [2001] FMCA 52; Mitchell v Clayton Utz and Ors [2009] NSW ADT 266; Noble v Baldwin and Anor [2011] FMCA 283; O'Callaghan v Loder [1983] 3 NSWLR 89
• Category: Interlocutory applications
• Parties: Bridgette Styles (plaintiff); The partners of Clayton Utz listed in the schedule to the statement of claim (defendants)
• Representation: S Chrysanthou and later C Howell (for the plaintiff); B D Hodgkinson SC with K Nomchong & A Dawson (for the defendants); Kalantzis Lawyers from 22 July 2011 (for the plaintiff); Clayton Utz and later Freehills (for the defendants)
• File Number(s): 20011/066430

Judgment

1 HER HONOUR: Bridgette Styles is a solicitor who was employed by the law firm, Clayton Utz, between August 2007 and December 2008. Ms Styles alleges that, during that period, she was subjected to sexual harassment by other solicitors in the firm, contrary to section 28B(2) of the Sex Discrimination Act 1984 (Cth). She further alleges that, after she made some of her harassment allegations, she was victimised on that basis, contrary to s 94 of the Act. By these proceedings, Ms Styles claims relief against the partners of Clayton Utz under the Australian Human Rights Commission Act 1986 (Cth) arising out of those allegations.

2 Ms Styles has commenced separate proceedings for defamation against Mr Luis Izzo, a solicitor employed by Clayton Utz, and the partners of Clayton Utz arising broadly out of the same facts. Those proceedings have been ordered to be heard together with these proceedings.

3 The parties have raised a litany of disputes as to the pleadings in both proceedings. The disputes in the defamation proceedings are to be considered in a separate judgment. This judgment determines the disputes in the discrimination proceedings. In order to determine those disputes, it is necessary to explain the claim in some detail.

Circumstances in which the allegations of sexual harassment arose

4 Ms Styles was employed by Clayton Utz as a graduate solicitor. As is common in large law firms, it was anticipated that she would spend time in three different practice groups for the first eighteen months of her employment so as to be exposed to a broad range of legal experience before settling in to any particular practice group.

5 Ms Styles had a particular interest in the field of law of workplace relations. When she was negotiating the terms of her employment, she secured a commitment from Clayton Utz that one of her rotations would be in the firm's Workplace Relations Group. That occurred in August 2008 when Ms Styles was rotated into her third practice group. One of the solicitors attached to the Workplace Relations Group at the time was Mr Izzo. The sexual harassment allegations arise, both directly and indirectly, out of dealings between Ms Styles and Mr Izzo.

6 It is difficult to describe their dealings without trespassing into areas of dispute between the parties. The following summary is drawn principally from the statement of claim filed by Ms Styles.

7 Ms Styles met Mr Izzo in late 2002 or early 2003. In early June 2007, after receiving an offer of employment with Clayton Utz, Ms Styles arranged to meet Mr Izzo for a drink at the New South Wales Leagues Club in Sydney to discuss the prospect of employment with the firm. She alleges that, for several weeks from that night, she and Mr Izzo were "romantically involved, but did not have sex". That relationship ended before Ms Styles began her employment with the firm on 20 August 2007. However, shortly after Ms Styles joined the firm, she and Mr Izzo had consensual sex on one occasion after having drinks with other work colleagues on a Friday night at Ryan's Bar in Sydney.

8 Ms Styles alleges that, both before and after that event, Mr Izzo told other people that she and he had had sex. Their relationship appears to have deteriorated from that point. I should emphasise that the act of consensual intercourse itself forms no part of Ms Styles' allegations of harassment. Her claims arise primarily from things said about her by Mr Izzo and consequent speculation and innuendo among others surrounding their relationship.

Sexual harassment claims

9 Sexual harassment is defined in section 28A of the Sex Discrimination Act as follows:

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

10 Importantly, "conduct of a sexual nature" is defined in section 28A(2) to include making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

11 Ms Styles does not rely on section 28A(1)(a). It is no part of her case that Mr Izzo or any other person made an unwelcome sexual advance or an unwelcome request for sexual favours to her. Her case is based exclusively on subsection (1)(b).

12 As the claim is presently pleaded, Ms Styles alleges that there were 12 incidents of unwelcome conduct of a sexual nature in relation to her whilst she was employed at Clayton Utz (see plaintiff's written submissions dated 24 June 2011 at [53]). The 12 incidents may be divided, broadly, into three groups of conduct. First, Ms Styles complains that Mr Izzo told employees and partners of Clayton Utz that he and Ms Styles had had sex and that others repeated those remarks to her. Those complaints extend to an allegation that Mr Izzo said so falsely on 31 August 2007, before he and Ms Styles had in fact had sex (paragraphs 11 and 13 of the statement of claim). It also comprehends an allegation that, after 1 September 2007 (when Ms Styles and Mr Izzo did have sex), Mr Izzo disclosed that fact and otherwise remarked to others upon his "romantic involvement" with Ms Styles (paragraphs 11 and 16 of the statement of claim). It is alleged that those statements came back to Ms Styles or, variously, that from time to time other people in the firm confronted Ms Styles as to whether such statements were true (paragraphs 13, 18, 20 and 28 of the statement of claim). Such statements made by other people are relied upon as separate breaches of the Act.

13 A second category of conduct complained of consists of statements allegedly directed to Ms Styles by Mr Izzo. Ms Styles complains that he called her "a slut", that he separately once called her "a bitch" and that he yelled at her in the presence of others that she had had sex with him at a time when she already had a boyfriend (paragraphs 17, 22 and 23 of the statement of claim). Those three acts are said to amount to actionable sexual harassment because they occurred at work functions.

14 The third category of conduct complained of relates to certain photographs of Mr Izzo placed in locations where Ms Styles could not avoid seeing them from her office when she joined the Workplace Relations Group. One was a montage of photographs of Mr Izzo. The defendants contend that the montage was prepared as a farewell presentation some time earlier (well before Ms Styles joined the Group) when Mr Izzo was due to go on secondment to an organisation in Canberra.

15 At the time Ms Styles joined the Workplace Relations Group, the montage was located on a panel inside the office opposite the office allocated to her, such that it could be seen by her through glass panels and the glass door of her office. Ms Styles inferred that the montage had been placed there deliberately at that time so as to be seen by her, at a time when rumours were circulating about her past sexual relations with Mr Izzo.

16 Affixed to the montage were two post-it notes which read:

(a) "...Luis, there is more to life than being ridiculously good looking, we hope you figure out what that is"; and

(b) "I'm nice to look at".

17 The second photograph complained of is a photograph of Mr Izzo which had evidently been printed from the firm's online internal staff directory and placed in a frame. Ms Styles noticed the framed photograph on the desk in the office facing her office at some point after she joined the Workplace Relations Group.

18 The original statement of claim did not identify any sexual feature of either photographic item. It was alleged, however, that in the circumstances pleaded in the other paragraphs to which I have referred, of speculation and confrontation as to whether it was true that Ms Styles and Mr Izzo had had sex, the placement of the two items in those locations amounted to unwelcome conduct of a sexual nature in relation to Ms Styles.

19 In a proposed amended statement of claim, Ms Styles has recently given particulars of an allegation that the photographs themselves were sexual or were so understood within the firm. It will be necessary to return to that issue.

Victimisation claim

20 Section 94(1) of the Sex Discrimination Act prohibits "victimisation", which is defined in s 94(2) as follows:

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 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 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.

21 On 19 September 2008, again at Ryan's Bar in Sydney, Ms Styles informed Mr Izzo that the montage and framed photograph could constitute sexual harassment and that she intended to inform Mr Joe Catanzariti, a partner of Clayton Utz and the head of the Work Relations Group. Mr Izzo spoke to Mr Catanzariti first, calling him the following day (a Saturday). The result of those discussions was that Mr Izzo produced a file note. The telephone call and the file note are two publications sued on in the defamation proceedings.

22 The detail of the events that transpired following the distribution of Mr Izzo's file note is a source of substantial dispute between the parties. It is not necessary to recite any of it for present purposes. In summary, Ms Styles claims that Clayton Utz responded to her allegation of sexual harassment (as communicated to Mr Izzo at Ryan's Bar) by victimising her, including ultimately terminating her employment. Clayton Utz contends that their investigation into the matters raised in Mr Izzo's file note brought to light conduct complaints about Ms Styles which were unrelated to her sexual harassment allegations. The firm alleges that Ms Styles' employment was terminated as a result of those conduct complaints and Ms Styles' response to them.

Background to the present disputes

23 The Australian Human Rights Commission Act creates a regime for addressing alleged breaches of the Sex Discrimination Act which requires that a complaint first be made to the Commission. A function of the Commission is to inquire into, and attempt to conciliate, such complaints: see section 11 of the Act. It is only upon termination of such a complaint by the President of the Commission that the jurisdiction of the Federal Court may be invoked to grant relief under the Act: see section 46PO of the Act.

24 On 31 August 2009, Ms Styles lodged a detailed complaint with the Commission.

25 On 18 September 2009, Ms Styles commenced the defamation proceedings.

26 The complaint to the Australian Human Rights Commission was terminated by the President in April 2010 pursuant to section 46PH(1)(i) of the Act on the grounds that there was no reasonable prospect of the matter being settled by conciliation. On 28 June 2010, Ms Styles commenced these proceedings in the Federal Court of Australia, as allowed under section 46PO.

27 On 18 February 2011, the proceedings were transferred to this Court by Perram J by consent pursuant to section 5(4) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), in light of the fact that the defamation proceedings were in this Court. As noted on behalf of the plaintiff, the conduct of the proceedings is now governed by the Uniform Civil Procedure Rules 2005, neither party having filed any notice under r 44.6 of the Uniform Civil Procedure Rules 2005.

28 On 7 March 2011, orders were made by the Defamation List Judge by consent that the discrimination claim (these proceedings) and the defamation proceedings be heard together and that evidence in one matter be evidence in the other. The present issues nonetheless evolved in such a fashion that it became convenient to hear the pleadings disputes raised in each proceeding separately.

29 On 7 June and 30 June 2011, I heard argument as to the following disputes in the discrimination proceedings:

(a) an application by Ms Styles to have parts of the defence struck out;

(b) an application by Clayton Utz to have parts of the reply struck out.

30 Shortly before the second of those days of hearing, Ms Styles propounded an "amended and consolidated statement of claim". That document was circulated too late to enable the defendants and the Court to address the issues it raised within the hearing time previously allocated. On 26 August 2011, I heard the plaintiff's application for leave to file a revised version of that document.

Orders sought in respect of the defence

31 The orders sought in respect of the defence are set out in the plaintiff's "application" dated 7 June 2011. The application expressly invokes the Court's power under rules 14.28 (power to strike out pleadings) and 4.15 (power to deal with scandalous matter on the court file). I note that the plaintiff's written submissions assert that the Court was asked to determine a separate question pursuant to rule 28.2 but I do not think that is a correct characterisation of the power invoked.

32 The plaintiff summarised her objections to the defence as falling into three categories: that it pleads irrelevant facts; that in answer to allegations of specificity it pleads events that happened at a different point in time; and that the defendants have persistently refused to confine their case to specified events, in some instances reserving the right to provide further particulars. It was submitted that, as a result, the scope of discovery has been endlessly expanded and is now "off the rails".

33 It is necessary to consider each individual objection separately. Regrettably, that entails referring to the pleadings in some detail.

Objection to paragraph 13(a) of the defence

34 The first order sought by Ms Styles is an order striking out paragraph 13(a) of the defence in response to the allegation that Mr Izzo called her a slut.

35 Paragraph 17 of the statement of claim states:

On 14 September 2007, at a function in Surry Hills to farewell an employee of the respondent, Izzo called [Ms Styles] a "slut".

36 The defendants' response to that allegation includes paragraph 13(a) of the defence, as follows:

[the defendants say] that in or about late June 2007 to September 2007 [Ms Styles] had engaged in belligerent behaviour towards Izzo:

Particulars

(i) making telephone calls to Izzo between 2.00 and 4.00 am;

(ii) leaving numerous abusive voice messages for Izzo;

(iii) accusing Izzo of having taken advantage of her and;

(iv) asking Izzo to resume their relationship.

37 Further particulars were supplied by the defendants by letter dated 28 April 2011. As to the telephone calls and voice messages referred to, the only particulars provided relate to late June or early July 2007. The defendants nonetheless maintain the allegation of belligerent behaviour up to September 2007.

38 The plaintiff submits that paragraph 17 of the statement of claim admitted of a response of specificity (an admission, a non-admission or a denial). It was submitted that conduct occurring in June or early July, two and a half months earlier and before Ms Styles was an employee of Clayton Utz, could not possibly be relevant to her allegation that the defendants are vicariously liable for the occasion on which Mr Izzo allegedly called her a slut in September 2007 at a work function.

39 It was sought to support that submission by reference to the decision of Katzmann J at first instance in Dye v Commonwealth Securities Ltd [2010] FCA 720 at [33], where her Honour stated (in reference to the obligation to plead the material facts on which the party relies) that a fact "is material if it is essential to the cause of action, not merely because it might be relevant to it".

40 It is difficult to draw assistance from such general statements of principle in determining a dispute which necessarily turns on the facts of the particular case. In the present case, all of the breaches of the Sex Discrimination Act pleaded by Ms Styles derive directly or indirectly from her relationship with Mr Izzo. A history of a "romantic relationship" and, on one night, a sexual relationship cannot be ignored in the assessment of his conduct. The deterioration of the relationship following those events plainly informs that assessment. So much is now explicitly recognised in section 28A(1A) of the Sex Discrimination Act , which specifies that the relationship between the person harassed and the person who engaged in the relevant conduct is to be taken into account as one of the circumstances by reference to which it is to be judged whether the conduct amounts to sexual harassment. Although that provision was inserted only recently (commencing on 21 June 2011), I would take it to have been enacted for clarity, rather than to effect any change in the law.

41 Further, the question whether Mr Izzo's acts were done "in connection with" his employment cannot be assessed with blinkered focus on the fact that the remark is alleged to have been made at a work function. The fact that Mr Izzo and Ms Styles had been lovers before that date and were no longer, and the intervening deterioration of their relationship is plainly capable of being relevant to that issue, in my view.

42 Separately, the plaintiff contended (in oral submissions at T73) that the time period pleaded ought to be confined to early July 2007. I do not think that point warranted being raised for the Court's determination. Such issues must be approached with a measure of common sense. On the present particulars, plainly the only allegations of which the plaintiff is on notice are confined to the narrower period. Any attempt to expand the allegation will have to be considered on its merits if the issue arises. I do not think it is an appropriate use of court time to seek to pre-empt such issues by seeking orders perfecting the pleadings to such a fine level of detail. I am fortified in my approach to this issue by section 46PR of the Australian Human Rights Commission Act , which provides that, in proceedings under the Act, the Court is not bound by technicalities or legal forms.

43 The application in respect of paragraph 13(a) is refused.

Objection to paragraph 16(a) of the defence

44 The second order sought by Ms Styles is an order striking out paragraph 16(a) of the defence and, in the alternative, an order confining it by reference to specified people in accordance with the particulars provided to date.

45 Paragraph 22 of the statement of claim states:

On 1 August 2008, at a function in Thredbo, for which the attendance of the applicant and other employees of the respondent was paid for by the respondent, Izzo called the applicant a "bitch".

46 In response to that contention, Clayton Utz says:

that between 2 September 2007 and 1 August 2008 [Ms Styles] had engaged in belligerent behaviour towards Izzo.

Particulars

(i) The applicant approached Izzo at social functions from time to time and made statements to him such as "you are a slut"; "you've slept with every girl in the firm"; and "you're a man whore".

(ii) The applicant advised a number of co-employees, including some who were not well known to her and had no knowledge of her prior relationship with Izzo , that she had had a romantic relationship with Izzo and that he had treated her badly (my emphasis).

47 The emphasised words are the subject of the alternative order sought.

48 Although the defence alleges in terms that the belligerent behaviour continued over the period from 2 September 2007 to 1 August 2008, the only particulars the defendants have provided in support of that allegation are for the period 14 September 2007 to late October or early November 2007 (see letter from Clayton Utz to Ms Styles dated 27 April 2011, tab 23 of Exhibit A). As stated in relation to order 1 above, if there are no particulars of any later conduct, the allegation is, of necessity, confined to the narrower period but such matters need not command the attention of the Court invoking the strike-out power.

49 The plaintiff's principal complaint in respect of paragraph 16(a) of the defence is that the allegation, so confined (to events of 2007), cannot conceivably be relevant to the Thredbo allegation (in August 2008). For the reasons outlined above in respect of paragraph 13(a) of the defence, I am not persuaded that the defendant's reliance on conduct of the plaintiff that occurred some eight months earlier renders the allegation embarrassing within the meaning of rule 14.28.

50 The plaintiff cannot expect the tribunal of fact to judge the conduct complained of as if it were an isolated event at a work function divorced of the complexities of a workplace in which co-employees are, or once were, attracted to each other and where each accuses the other of talking about the issue with colleagues. It will plainly be pertinent for the tribunal of fact to have the history of dealings between Ms Styles and Mr Izzo before it in order to determine whether the isolated act of calling Ms Styles a "bitch" in Thredbo in August 2008 falls within the test under section 28A.

51 The alternative order sought was that the particulars be confined to two named employees in circumstances where the defendants have refused to name any others. As with other such complaints, it is enough to note that, if the defendants have not put the plaintiff on notice of statements made to any other people, the allegation is, of necessity, confined to the people named. Such matters should be addressed with common sense and need not command the attention of the Court invoking the strike-out power.

52 The application in respect of paragraph 16(a) is refused.

Objection to paragraph 22(c) of the defence

53 The third order sought by Ms Styles is an order striking out paragraph 22(c) of the defence.

54 Paragraph 28 of the statement of claim states:

On or about 3 October 2008, while standing amongst a group of employees of the respondent, Angus Young, an employee of the respondent, inquired of the applicant whether the applicant and Izzo had "fucked".

55 In response to that allegation, the defendants say (among other things) in paragraph 22(c) of the defence:

That during this same evening the applicant made offensive remarks and behaved in an irrational and aggressive manner to employee 1 (who was also at Ryan's Bar).

56 "Employee 1" has since been identified as Ms Tara Walker. I note that the statement of claim did not expressly identify Ryan's Bar as the scene of the conduct complained of (as assumed in the defence) but the argument before me appeared to proceed on that premise.

57 The plaintiff sought particulars of the time of the conduct alleged in paragraph 22(c) and its relationship to the conduct pleaded in paragraph 28 of the statement of claim. The defendants refused to answer that request: see tab 23 of Exhibit A.

58 The defendants admit that a conversation took place between Ms Styles and Mr Young on 3 October 2008 at Ryan's Bar, but do not admit that he asked her whether she and Mr Izzo had "fucked". In that context, and in circumstances in which the defendants have refused to identify any factual or temporal connection between the plaintiff's allegedly irrational and aggressive behaviour towards Ms Walker and her conversation with Mr Young, the plaintiff submits that there can be no relevance in the allegations made in paragraph 22(c) of the defence.

59 In considering that contention, it is useful to return to the terms of s 28A of the Sex Discrimination Act . Ms Styles has the burden of proving three things: first, that there was conduct of a sexual nature in relation to her; secondly, that the conduct was unwelcome; and thirdly, that the conduct occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that she would be offended, humiliated or intimidated. The content of the second requirement is considered in detail below in the context of Ms Styles' application to amend the statement of claim.

60 The defendants submit that Ms Styles' conduct pleaded in paragraph 22(c) of the defence is relevant to an assessment of the third element, which requires the putative reasonable person to have regard to "all the circumstances" in judging whether the conduct fell within the description in that section.

61 In my view, if Ms Styles' allegedly irrational and aggressive behaviour occurred in the period leading up to the question allegedly posed by Mr Young, it would be capable of having a bearing on the issue whether a reasonable person "having regard to all the circumstances" would have anticipated the possibility that Ms Styles would be offended, humiliated or intimidated by Mr Young's question. Indeed I cannot see how her own conduct before the remark was made could fairly be overlooked in that assessment. Conversely, her behaviour at a later point would arguably be irrelevant to that assessment.

62 A difficulty, of course, is that the defendants' refusal to provide the particulars sought means that Ms Styles does not know whether it is alleged that she behaved irrationally and aggressively towards Ms Walker before or after that time. Having regard to the nature of the relevant events (conversations in a bar after work), it may be that the defendants themselves are unsure as to how that issue will fall out at trial.

63 In any event, in my view, Ms Styles' conduct on the relevant evening both before and after the comment sued on could inform the assessment of the second element of sexual harassment (that the conduct was unwelcome). On that analysis the particulars could be relevant, even if the allegedly irrational and aggressive behaviour occurred after the comment sued on. Accordingly, on balance, I am not persuaded that the particulars are untenable. In my view, however, the defendants ought not to have refused to provide the further particulars sought by Ms Styles, unless they have already provided the best particulars they can, in which event they should say so.

64 The application for an order striking out paragraph 22(c) of the defence is refused. Unless it is indicated that the defendants have provided the best particulars they are able to provide of that paragraph, I propose to make an order that the defendants provide further particulars to explain what is alleged to be the relationship between Ms Styles' allegedly irrational and aggressive behaviour and the conduct complained of against Mr Young.

Order 4 sought by the plaintiff

65 The fourth order sought by Ms Styles is an order striking out paragraphs 23(a)(iv), 23(c)(iii)(A), 23(e)(ii)(A), 23(f)(ii)(A) and 23(h)(ii)(A) of the defence.

66 Those paragraphs, which form part of the defendants' general response to all of the allegations of sexual harassment, deny that, in the circumstances, any representations or remarks were unwelcome as the applicant "herself had informed a number of people, including other employees of the respondent, of her involvement with Izzo".

67 The plaintiff's complaint is that, in response to a request that the defendants identify the people in question by name, the defendants have stated:

At this stage we cannot definitively identify all such individuals. The defendants believe though that it includes Yasmin Yazdani, Philippa Hofbrucker and Tara Walker.

68 It is submitted on behalf of Ms Styles that the response is tantamount to an admission that the defendants do not presently have reasonable grounds upon which to make the allegation. In reference to that submission, the plaintiff reminded the Court of the decision of the High Court in Clyne v New South Wales Bar Association [1960] 104 CLR 186. Having regard to the facts of that case (summarised at 188 of the report), I do not think the comparison was fair or appropriate.

69 Separately, the plaintiff relied upon the remarks of Flick J in Fraser-Kirk v David Jones [2010] FAC 1060 where his Honour said at [17]:

There is thus no question but that the request for particulars as to the identity of those persons must be complied with. Devoid of proper particulars, the Amended Statement of Claim would have "a tendency to cause prejudice, embarrassment or delay in the proceeding" or be an "abuse of the process of the Court". In the absence of proper particulars being provided, such an unparticularised pleading can be ... struck out pursuant to Order 11 r 16 of the Federal Court Rules 1976 .

70 Those remarks were made in a context very different from the present case. In that case, Ms Fraser-Kirk, who complained of sexual misconduct at the hands of the Chief Executive Officer of David Jones, had filed an amended statement of claim (which thereupon became available to the public) pleading sexual harassment, including unwelcome conduct of a sexual nature, allegedly committed by the same man against a number of other employees whom Ms Fraser-Kirk refused to name. The prejudice of allowing such allegations to stand on the pleading in the face of a refusal to name the employees and former employees in question is manifest.

71 This is a very different case. The obligation of the defendants is to provide the best particulars they are able to. The material fact that has been pleaded is that the plaintiff has herself informed a number of people of her romantic involvement with Mr Izzo, which it is asserted (not unreasonably) would sustain the inference that the conduct of which she complains in other people making such remarks was not "unwelcome" to her, as required by section 28A.

72 It may be noted that the plaintiff would know whether she has informed other people, including other employees of the defendants, of her romantic involvement with Mr Izzo, although I accept that that fact does not remove the defendants' obligation to provide the best particulars they can so as to enable Ms Styles to know how their defence is put.

73 As to Ms Styles' complaint that a "belief" that the relevant people include the three people named in the letter suggests a tenuous basis for pleading the allegation, it is doubtful whether the defendants' letter should be understood as a concession to that effect. However, in light of the equivocal terms of the letter, the defendants should be directed to indicate whether they have provided the best particulars they are able of that allegation, failing which any further particulars should now be provided.

74 A separate complaint made by the plaintiff in respect of those allegations is that the defendants have failed to identify the date on which it is alleged Ms Styles informed people of her involvement with Mr Izzo. It was submitted that the date was a material fact, since the fact that the applicant had revealed those matters herself could not be relevant to the circumstances by which the unwelcomeness of the conduct is to be measured if she had not made such disclosures at the date of the conduct in question.

75 Although I think the defendants should provide the best particulars they are able to as to the dates on which Ms Styles allegedly made such revelations, I do not accept that her revelations are not otherwise capable of being relevant to the issue whether the conduct she complains of was unwelcome. In summary, the defendant's case is that, whereas Ms Styles complains that it was unwelcome conduct of a sexual nature for others to ask her about her sexual relationship with Izzo, she was in fact happy to discuss the relationship herself. That is an arguable case, and it does not matter whether she was happy to do so before or after others raised the issue with her, although the timing of the respective conversations might also inform the assessment of the unwelcomeness of the conduct.

76 The application for an order striking out the parts of paragraph 23 of the defence identified in prayer 4 of the plaintiff's application is refused. Unless it is indicated that the defendants have provided the best particulars they are able to provide of that paragraph, I propose to make an order that the defendants provide further particulars.

Order 5 sought by the plaintiff

77 The fifth order sought by Ms Styles is an order striking out paragraphs 23(c)(iii)(B), 23(d)(ii)(A), 23(e)(ii)(B), 23(f)(ii)(B), 23(g)(ii) and 23(h)(ii)(B) of the defence.

78 By those paragraphs, the defendants deny that the conduct complained of by the plaintiff was "unwelcome", since the plaintiff had made remarks about the alleged promiscuity of others (including in pejorative terms such as "slut") "including" in relation to Mr Izzo, Ms Walker and Ms Michele Beck. The plaintiff's principal complaint in respect of those particulars is that the defendants have refused to confine the allegation to identified employees.

79 There is fault on both sides in respect of this issue and it should not have festered to a point where it was thought that it should command the attention of the Court on an interlocutory application. On the one hand, the defendants, once asked for particulars as to the persons to whom such remarks were allegedly made, ought to have mustered such material as was available to them and been prepared to pitch their case on the strength of that material. The use of the term "including" to preface such particulars should be avoided. On the other hand, the defendants' refusal to abandon any further information that might come into their hands in the future scarcely warranted a strike out application, for the reasons already explained in respect of order 1. For the Court to engage with such a dispute would, in my view, be inimicable to the overriding purpose. The parties ought to have been content to make their respective positions clear in correspondence. I do not propose to make any order in respect of that particular complaint.

80 Separately, the plaintiff submits that the particulars are defective because, in some instances, it is clear that the "circumstances" sustaining the denial that remarks were unwelcome occurred well after the relevant remarks. Thus, for example, the allegation that Ms Styles described Ms Walker as a "slut" and a "bitch" on 2 August 2008 is relied upon in support of the denial that Mr Izzo's conduct in early September 2007 (of disclosing that he and Ms Styles had had sex) was unwelcome conduct within the meaning of s 28A.

81 Plainly that is a powerful argument but I do not think it is a basis for striking out the particulars. The plaintiff wishes to put her case as 12 isolated incidents of sexual harassment. The defendants wish to respond to that case by inviting the tribunal of fact to consider all of the conduct complained of in the context of the plaintiff's own behaviour throughout the whole of the relevant period. That context will inform the assessment of Ms Styles' assertion that each individual incident was unwelcome to her. It is not necessary to determine at this point whether it is also capable of informing the assessment of whether a reasonable person having regard to all the circumstances would have anticipated the possibility that she would be offended, humiliated or intimidated by the conduct.

82 I do not think the question of what is capable of being relevant to the assessment of each alleged breach of the Act should be determined as if they were 12 indictments to be tried separately. In my view, if it were established (for example) that the plaintiff had herself accused another employee of having a sexual relationship with Izzo (as alleged in paragraph 17(c) of the defence), even though that accusation was made at a much later point in time, it would be capable of being taken into account in the assessment as to whether Mr Izzo's earlier conduct in disclosing his sexual relationship with Ms Styles amounted to sexual harassment within the meaning of the Sex Discrimination Act . Plainly, careful attention will need to be paid at the trial to the proper use that may be made of the evidence as it emerges. I am not persuaded that any of the particulars objected to by Ms Styles is liable to be struck out summarily.

83 The application for an order striking out the parts of paragraph 23 of the defence identified in prayer 5 of the plaintiff's application is refused.

Objection to paragraph 29(e) of the defence

84 The sixth order sought by Ms Styles is an order striking out paragraph 29(e) of the defence and, in the alternative, an order confining it to the particulars already provided.

85 Paragraph 29 of the defence responds to paragraphs 39 to 41 of the statement of claim where the plaintiff pleads, in support of her victimisation claim, that she attended for work at 1.30 pm on 3 October 2008; that at 5.00 pm on that day she was escorted out of the office by Ms Rachel Weir and that she was directed not to attend work until the completion of the investigation into Mr Izzo's file note and her response to that file note.

86 In response to those contentions, the defendants allege that at approximately 3.00 pm on 3 October 2008 Ms Weir met with Robbie Walker and Michael Burns to discuss the applicant's response to the file note. Paragraph 29(e) of the defence alleges:

[Ms Styles] entered that meeting uninvited, made allegations and demands and was visibly upset.

87 In response to a request for particulars of the "allegations" and "demands" referred to, the defendants provided the following further particulars:

Allegations made by [Ms Styles] included that the process was "unfair". Demands made by [Ms Styles] included that she "needed to be at work".

88 Plainly, those particulars are capable of sustaining paragraph 29(e) of the defence and in that context I do not understand why it was seen fit to move the Court to have that paragraph struck out. In my view, however, there is some force in the plaintiff's complaint as to the appropriateness of a response expressly reserving the prospect of further particulars at a later time (by use of an inclusive response). It is clear from the terms of the defence that the meeting is alleged to have involved only two people, each of whom was (at least at the relevant time) an employee of Clayton Utz. There should be no difficulty for the defendants in collecting the relevant allegations and informing Ms Styles accordingly. If any further allegations or demands will be relied upon at the trial, the plaintiff is entitled to know what they are.

89 The application for an order striking out the parts of paragraph 23 of the defence identified in order 6 of the plaintiff's application is refused. I propose to order that the defendants provide the best particulars they are able to provide of those allegations on the understanding that, subject to ordinary principle, they should be confined to those particulars.

Orders 7 and 9: objection to paragraph 31(d)(iv) of the defence

90 Orders and 7 and 9 sought by the plaintiff relate to paragraph 31(d)(iv) of the defence. That paragraph of the defence responds to paragraph 43 of the statement of claim, which forms part of the plaintiff's pleading of the cause of action of victimisation on the grounds of her sexual harassment allegation concerning the montage and the photo frame.

91 Paragraph 43(c) of the statement of claim states that, during a meeting on 17 October 2008, Julie Levis told Ms Styles that there were "a number of issues with [her performance]".

92 Paragraph 31(d)(iv) is part of the defendants' response to that allegation. The defendants say that, on or about 9 or 10 October 2008, they:

Had received advice from the partner of the respondent who had supervised the applicant in her previous rotation in the Mergers and Acquisitions group, to the effect that the applicant had been rude and unprofessional in a number of instances and that the partner considered that the applicant had performance issues. Further, the partner had raised these performance issues with the applicant in or about August/September 2008.

93 In response to a request for particulars as to the substance of the advice referred to in that paragraph, the defendants rest on the terms of the defence itself and also the terms of a letter provided to Ms Styles during the meeting on 17 October 2008 setting out the performance issues raised with Ms Weir by the partner in question.

94 Ms Styles complains that the particulars so provided fail to "offer any facts, matters or circumstances to support the more general statements made in the 17 October 2008 letter". In those circumstances, Ms Styles seeks a curious form of relief. First, purportedly invoking rule 15.10 of the Uniform Civil Procedure Rules (which sets out the court's power to order a party to file particulars), Ms Styles seeks order 7 in the application requiring the defendants to file "the following particulars of paragraph 31(d)(iv)". What follows is a redraft of the relevant part of the letter of 17 October 2008. The redraft, in substance, seeks to remove any generality in that letter and to confine the defendants in specific terms.

95 By prayer 9 of the application, the plaintiff seeks an order (presumably for abundance of caution) refusing leave to the defendants to amend paragraph 31(d)(iv) of the defence to incorporate those parts of the letter of 17 October 2008 which have been deleted in order 7.

96 It is doubtful whether the Court has power to make an order directing a party to particularise a claim or defence in terms specified in the order. To state the obvious, pleadings and particulars are propounded by the parties, not the Court. In any event, in my view, the matters summarised in the letter of 17 October 2008 are adequate to put the plaintiff on notice as to the case she has to meet (as to why Ms Levis told her there were a number of issues with her performance). The letter identifies the substance of the advice Ms Levis had received from the partner in question. I see no need for more particular specification of those matters. The application for orders 7 and 9 is refused.

Order 8: paragraph 45(c) of the defence

97 Order 8 seeks "particulars of the sections of the Acts referred to in paragraph 45(c) of the defence". The plaintiff's written submissions in respect of that request were added by the plaintiff herself and had not been seen by her counsel before they were provided to the Court (see T78.9).

98 The request seeks particulars of the law and is plainly misconceived. The application for order 8 is refused.

Orders sought in respect of the reply

99 I turn now to consider the defendants' application to strike out parts of the reply. Ms Styles' claim against the partners of Clayton Utz invokes section 106(1) of the Sex Discrimination Act , which (relevantly) creates vicarious liability in an employer for breaches of the Act on the part of its employees if the relevant acts were done "in connection with the employment of the employee".

100 Sub-section 106(2) creates an exception to the vicarious liability created by sub-section (1), as follows:

Sub-section (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

101 Clayton Utz denies that any of the conduct complained of was done in connection with the employment of the people in question. In the alternative, Clayton Utz has pleaded, by way of defence to Ms Styles' claims, that it took all reasonable steps to prevent its employees from doing acts of the kind alleged by her in the statement of claim.

102 By way of reply to that defence, Ms Styles has pleaded in paragraph 5(i) of her reply that the defendant:

failed to prevent the existence in the Sydney office of a workplace which was hostile to women.

103 The plaintiff has supplied a series of particulars in support of that contention raising issues and events that fall well outside the scope of her specific sexual harassment allegations. Clayton Utz seeks an order striking out paragraph 5(i) in its entirety and, alternatively, an order striking out some of the particulars supplied in support of that contention.

Objection for want of jurisdiction

104 The first ground on which that order is sought is that paragraph 5(i) of the reply is outside the jurisdiction of this Court by reason of the operation of section 46PO(3) of the Australian Human Rights Commission Act . That section provides:

(3) The unlawful discrimination alleged in the application [to the Federal Court]:

(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.

105 With great respect to the careful submissions put on this issue on behalf the defendants, I think the objection on that ground is misconceived. It was made plain during argument on behalf of the plaintiff that she did not seek to expand her complaint of sexual harassment by reference to any of the matters raised in the reply, but only to respond by way of defeasance to the defendants' contention that they fall within the exclusion under section 106(2). It seems to me that, as a matter of logic and fairness, a complainant met with the contention that an employer took all reasonable steps to prevent its employees from doing acts of the kind complained of should be permitted to point to events outside the scope of her own complaint to rebut that contention. In my view, nothing in section 46PO says otherwise. That section plays an important role in containing the scope of the matters that may be litigated in exercise of the Federal jurisdiction conferred by the Australian Human Rights Commission Act . However, I do not think it speaks to the scope of matters that may be raised in defeasance of a defence under section 106(2).

106 The defendants' separate contention that specific particulars relied upon by Ms Styles fall outside the jurisdiction of the Court must be rejected for the same reasons.

"Hostile work environment" as a discrete cause of action

107 The defendants submitted that the reply should be struck out on the further ground that the existence of a "hostile work environment" is in itself a form of discriminatory conduct which is recognised as a separate cause of action. For that reason, it was submitted that the existence of a hostile work environment cannot be pleaded in a reply. The defendants noted that a plaintiff may properly plead factual matters in response to a defence but that a reply cannot be used to raise new allegations, since to do so deprives a defendant of the opportunity to plead a defence to those allegations.

108 The plaintiff responded by reiterating that it was not sought to rely upon the allegation of a hostile work environment as a new allegation of sexual discrimination as a discrete cause of action but only in defeasance of the contention that the defendants took all reasonable steps to prevent the relevant employees from doing acts of the kind complained of. In short, she asserts that the existence of a workplace which was hostile to women, as allegedly demonstrated by the particulars to the reply, demonstrates a failure to take all such reasonable steps.

109 In the context of those competing contentions, both parties referred extensively to authority as to the existence of a "hostile work environment" as a form of discriminatory conduct. I do not think it is necessary to have regard to the jurisprudence on that issue in order to determine the present dispute, which (as made plain by the plaintiff) is essentially factual. The critical task is to consider whether the matter pleaded is capable of rebutting the defence and whether the individual particulars in support of that matter should be permitted to stand.

Consideration of individual particulars - statutory context

110 In considering those issues, it is appropriate to have regard to the statutory regime for addressing allegations of sexual harassment and victimisation provided for in the Sex Discrimination Act and the Australian Human Rights Commission Act and also to the procedural regime that governs these proceedings, including the mandatory consideration of sections 56 to 58 of the Civil Procedure Act 2005. The Court should approach its task on the assumption that the statutory context in which this issue falls to be determined permits of a coherent analysis.

111 My consideration of the relevant legislation has led me to the conclusion that I should approach this issue on the following premises. First, section 46PO of the Australian Human Rights Commission Act speaks only to the causes of action upon which the plaintiff may rely and does not operate so as to deprive the Court of jurisdiction to address conduct outside the scope of the original complaint where it is sought to be relied upon in defeasance of a defence under section 106(2). There are, however, strong indications both in the Australian Human Rights Commission Act and in the Civil Procedure Act that the matters litigated should be contained within sensible scope by reference to conduct complained of.

112 Thus section 11 of the Australian Human Rights Commission Act imposes a duty on the Commission to ensure that its functions are performed efficiently and with the greatest possible benefit to the people of Australia. The Court is under a similar duty under section 56 of the Civil Procedure Act , in that case framed by reference to an obligation to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings.

113 Although there is no express constraint on the scope of matters that may be raised in a complaint to the Commission, section 46PH of the Australian Human Rights Commission Act provides that the Commission may terminate a complaint on the grounds that it was lodged more than 12 months after the alleged unlawful discrimination took place, suggesting a legislative intention that the Commission should confine its attention to current allegations. Section 46PA of the Act confers a right on a complainant to amend a complaint at any time with the leave of the President but such leave may not be given after the complaint is terminated: section 46PH of the Act. That suggests, consistently with section 46PO, a legislative intention to contain the scope of issues that may be litigated in the Court. Finally, section 46PO, although not directly applicable to matters properly raised by way of reply, also evinces a clear intention that litigation following the termination of a complaint is not at large.

114 Thus although it is important to have regard to the objects of the Sex Discrimination Act including the object of eliminating, so far as is possible, discrimination against persons on the ground of sex, the attainment of that object is to be achieved in the context of the Court's duty to contain litigation within limits that are proper having regard to the overriding purpose. The Australian Human Rights Commission Act creates statutory remedies for individuals aggrieved by alleged breaches of the Act. The pursuit of such remedies is no warrant for a roving inquiry into all of the conduct of a defendant. I accept, as noted on behalf of the plaintiff, that by pleading a defence under section 106(2) of the Act, an employer opens an inquiry into its own conduct but the litigation of that issue must nonetheless be regulated by reference to the real issues in the proceedings.

115 Against those considerations, I have concluded that it is open to a plaintiff, as a matter of logic, to respond to a defence under section 106(2) with the factual contention that a failure to take reasonable steps is to be inferred from a failure to prevent the existence of a workplace hostile to women. It follows, in my view, that paragraph 5(i) of the reply is not liable to be struck out for want of jurisdiction. However, the Court must be vigilant to ensure that the matters brought forward in support of such a contention are within the scope of the real issues raised by the complaint and the defence to the complaint.

116 The real issues in the present case revolve around Mr Izzo's conduct in talking about his sexual relations with Ms Styles, the contention that other employees saw fit to repeat those statements to Ms Styles or to interrogate her as to their truth, the acrimony that subsequently developed between Mr Izzo and Ms Styles (which allegedly saw him directing terms of abuse to her) and the intriguing issue of the placement of the photographs. The question of "reasonable steps" within the meaning of section 106(2) is to be judged against prevention of acts of that kind and by reference to the particular employees accused of them by the plaintiff.

117 The defendants submitted that, on that analysis, the issues in the proceedings should be confined to the Workplace Relations group. However, as noted on behalf of the plaintiff, some of the people she accuses of unwelcome conduct of a sexual nature (in confronting her as to the truth of the sexual rumours) were people outside that group.

118 It was submitted on behalf of Ms Styles that the defence opened the defendants to a broad inquiry by reason of the scope of the pleading itself. Paragraph 2(ii) of the defence asserts:

[The defendants] took all reasonable steps to prevent its employees from doing acts of the kind alleged by [the plaintiff] in the statement of claim and [the defendant] relies on section 106(2) of the Sex Discrimination Act .

119 To the extent that the defence, so pleaded, purports to relate to steps taken in respect of all employees of the firm, it travels beyond the scope of what is required to be established under section 106(2), which focuses specifically on the employee whose act has potentially exposed the employer to vicarious liability. Plainly, the defence must be understood in that narrower sense.

Particulars pleaded in the original reply

120 On that premise, I turn to consider the individual particulars relied upon. The first three are pleaded in the reply itself. They are:

5(i) failed to prevent the existence in the Sydney Office of a workplace which was hostile to women;

Particulars

The workplace was hostile to women in that within the Sydney Office the Respondent:

(a) failed to ban the existence of a Facebook group called the " Clayton Utz Workplace Relations (Sydney) Whorebags ," subtitle: " CU Dirty Blvd " and offer counselling to its members;

(b) allowed the existence of the Photo Montage and the Framed Photo in the Workplace Relations Group;

(c) victimised the Applicant on the basis that she had made a complaint of sexual harassment;

121 In my view, each of those allegations as an allegation of fact is capable of being taken into account in determining whether the defendants took all reasonable steps to prevent harassment of the kind alleged by Ms Styles. Particular (a) was not the subject of individual objection by the defendants. It is doubtful whether, on its own, that contention would rebut the defence but that is not the test. The particular relates specifically to the Workplace Relations Group and the tone of communications between people in that group. It should be permitted to stand.

122 In my view, the allegations concerning the photo montage and the framed photo are in the same category. The defendants do not contend that Ms Styles' allegations concerning those matters are liable to be struck out as disclosing no reasonable cause of action for sexual harassment. It follows, in my view, that Ms Styles should be permitted to rely on her version of those events as matters to rebut the defence (although it is doubtful whether it was necessary to plead those matters by way of reply).

123 Particular (c) relating to the alleged victimisation of Ms Styles on the grounds of her complaint of sexual harassment is, in my view, in the same category. It is factually capable of rebutting the defence (but probably did not need to be pleaded by way of reply).

Particular (e): male solicitors who had "difficulty working with women"

124 The remaining particulars objected to were supplied in a separate letter dated 30 March 2011 sent by Ms Styles to Clayton Utz (annexure D to the affidavit of Mr Lucas sworn 6 June 2011).

125 Particular (e) alleges that the defendants "took no action to address and rectify the difficulty which [two males solicitors in the Mergers and Acquisitions practice group] had working with women solicitors". The two solicitors identified in particular (e) are not among the employees of the defendants alleged to have committed the 12 acts of sexual harassment sued on in these proceedings. It may be acknowledged, however, that four of the employees alleged to have committed acts of sexual harassment (in repeating to Ms Styles statements by Mr Izzo that they had had sex or in asking her whether it was true) were in the Mergers and Acquisitions group at the relevant time.

126 The principal vice of particular (e) is that it has a tendency, in my view, to cause both embarrassment (in the pleading sense) and delay in the proceedings. The embarrassment derives from the formulation of the particular itself. The allegation assumes, as a premise, that the two identified solicitors had "difficulty working with women solicitors" but wholly fails to identify any basis for that premise, or what it means. It could entail an enormous variety of matters, not necessarily linked to the kind of conduct sought to be eliminated under the Sex Discrimination Act .

127 Ms Chrysanthou (who appeared for Ms Styles on this argument) submitted that, if the import of the contention was unclear, the defendants could have requested further particulars. Leaving aside the inappropriateness of such an approach to the task of giving proper particulars of a claim, that submission crystallises the second vice of particular (e). If permitted to stand, it will plainly protract both the interlocutory steps in preparation for the hearing (including particulars and discovery) and the hearing itself. It will raise the need for two additional employees of the defendants not otherwise involved in the proceedings to defend themselves against the broad contention that they had difficulty working with women.

128 I would not shirk from compelling the defendants to take those steps if I thought those issues were properly comprehended within the real issues in the proceedings. In my view, however, even if the allegation that the two male solicitors in question had difficulty working with women were adequately particularised so as to enable the defendants to know the case they have to meet on that issue (which presently it is not), the firm's response to such "difficulties" experienced by two particular men not otherwise implicated in the breaches of the Sex Discrimination Act complained of by the plaintiff is not capable of having any real bearing on the reasonableness of the steps taken to prevent conduct of the kind attributed to the alleged harassers in these proceedings. They are wholly different kinds of allegations. Particular (e) should be struck out.

Particular (f): toleration of sexual harassment by partners

129 Particular (f) is that the defendants tolerated and failed to prevent sexual harassment by its male partners. In my view, such an allegation in itself is capable (in theory) of rebutting a defence under section 106(2). However, attention must be paid to the individual particulars relied upon in support of it.

Particular f(i): promotion of a partner against whom a report of sexual harassment had been made

130 The first is particular (f)(i), which alleges the promotion of a partner notwithstanding the fact that he had previously been reported for sexual harassment. I was informed at the hearing that the report in question was made in 1993. An obvious difficulty with the allegation is that the existence of a report of sexual harassment does not prove that the sexual harassment occurred. In any event, having regard to the principles stated above, I have concluded that the events of 1993 are so far removed from the real issues raised on the pleadings in the present case that they should not be permitted to form part of the hearing: cf Gama v Qantas Airways Ltd (2006) 195 FLR 475.

Particular f(ii): the job interview

131 The second is particular (f)(ii) which relates to a comment allegedly made to Ms Styles by a partner when Ms Styles was interviewed for employment with Clayton Utz on 16 May 2007. The first difficulty with that particular is that it amounts, in terms, to a new allegation of sexual harassment of the plaintiff. In her complaint to the Australian Human Rights Commission, Ms Styles did set out the circumstances of her job interview but they were not characterised at that time as amounting to sexual harassment. Ms Styles has only come to regard the comment in that way in light of information subsequently obtained. That raises a number of complexities. Regrettably, in order to explain them, it is necessary to go into some detail relating to the complaint.

132 Although not expressly referred to in the particulars, the context of the new allegation is that, during the job interview, the partner presented a photograph of Ms Styles which he had evidently printed out from her "Flickr" page. It showed her piranha fishing on the Amazon. According to Ms Styles' complaint to the Australian Human Rights Commission, he said " is this you?" , to which she responded that it was. He then said " and let's not even get started talking about Marcus Day!"

133 Ms Styles was evidently puzzled by the remark but did not at that time perceive it as unwelcome conduct of a sexual nature. She told the partner that Marcus Day was a good friend of hers from university. The partner gave no explanation for the remark.

134 Material obtained by Ms Styles on subpoena in the defamation proceedings (which she is permitted to use for the purpose of these proceedings by reason of orders made earlier this year by Nicholas J) has driven her to infer two alternative possible explanations for the remark, each of which has prompted her now to construe the "Marcus Day" remark as amounting to unwelcome conduct of a sexual nature.

135 Shortly after her interview, Ms Styles sent an email to Mr Day, whom she then evidently regarded as a friend, asking whether he or his father knew the partner who had interviewed her. Mr Day forwarded the email to three men including Mr Izzo, prompting an animated exchange as to the curious events of job interview. It is doubtful whether the authors of the emails imagined that they would ever be read by Ms Styles, let alone become an exhibit in legal proceedings. In the course of the email exchanges, Mr Day informed his friends that there is a gay porn star called Marcus Day (he added some lurid detail which it is not necessary to repeat here).

136 The email exchange also referred, intriguingly, to an image of Ms Styles evidently available through the search engine, Google. One of the participants in the exchange concluded that a Google image search of "Bridgette Styles" solved the puzzle as to why Mr Day's name had come up in the context of photos during the job interview.

137 Extraordinarily, three of the four men who engaged in this unseemly exchange did so through their work email addresses. Ms Styles thus obtained the exchange by means of a subpoena issued to Mallesons. After first reading the exchange, and seeing Mr Day's reference to his gay pornographic namesake, Ms Styles evidently drew the inference (in hindsight) that the partner who interviewed her must have been referring to the gay pornographer during the job interview. I have given very close attention to the email exchange. Whilst I can well understand that Ms Styles may have found its revelations shocking, in my view her inference that the partner in the interview must have been referring to the gay porn star is entirely without foundation and is, indeed, scandalous. The particulars in the reply, insofar as they rest on that inference, should not be permitted to stand.

138 A second explanation for the Marcus Day remark in the job interview has evidently occurred to Ms Styles more recently. It appears in her proposed amended and consolidated statement of claim and is considered in that context below.

139 The whole of particular (f) should be struck out.

Particular (g): failure to prevent inappropriate sexualised humour and language

140 The next particular of the reply is particular (g), which alleges that the defendants failed to prevent inappropriate sexualised humour and language being used by their male employees in respect of female employees. As I understood it, this was put as contributing to a climate in which sexual harassment was more likely to occur.

141 Particular (g)(i) of that contention is that, in or about June 2007, a heterosexual male solicitor inducted a new male graduate solicitor into "this culture" by informing him that solicitors could take paralegals home for sex. The defendant's submissions asserted (and it was not disputed) that the comment was taken from an interlocutory decision of the Administrative Decisions Tribunal of NSW in Mitchell v Clayton Utz and Ors [2009] NSW ADT 266 in which the Tribunal refused Mr Mitchell leave to proceed with that (and other) allegations. Whatever the context in which Mr Mitchell evidently sought to complain of the remark, it is stripped of that context in these proceedings. It seems likely that its introduction in these proceedings will import a substantial separate issue, with consequent expansion and delay of the present dispute. The allegation seems to me to be so peripheral to the real issues in these proceedings that it should not be permitted to stand as an allegation in rebuttal of the defence under section 106(2).

142 Particular (g)(ii) relates to emails sent by Mr Izzo, evidently to friends outside Clayton Utz. It appears that conduct is alleged to be relevant to his conduct as an employee because the emails were sent from his work email address and related to female employees of the firm. As noted by the defendants, however, it is not asserted that the emails were sent to anyone within the firm, or that Ms Styles was aware of them at the relevant time.

143 The emails are no advertisement for male sensitivity; their author evidently no feminist. In one of the emails, Mr Izzo speaks of "crazy single female chicks" who "just need a good **** to get them back to normal". It is difficult to decide whether it is more surprising that the remarks were made at all (after over a century of feminism) or that a lawyer recorded them in an email (after over seven centuries of subpoenas).

144 The critical question, however, is whether the existence of the emails is capable of informing a judgment of the alleged failure of the partnership to prevent inappropriate sexualised language in the workplace. Given that the emails are not alleged to have been sent to anyone within the firm, and given further that the critical word (presumably, "fuck") is obscured in the first email by asterisks (so as to avoid the gaze of any electronic gate-keeper), I do not see how the partners of Clayton Utz ought reasonably to have prevented such correspondence. That is not to say that the emails are necessarily irrelevant to any issue in the proceedings, but I to not think they are capable of sustaining the matters pleaded in the reply.

145 Particular (g)(iii) relates to an email sent by Mr Izzo on about 9 December 2008, relating to the firm's decision to allow Ms Styles to return to her original group. In the email, Mr Izzo said " they were scared of her so... the pussies in HR (including my superiors here) took her back in her original group. Such a dumb move." The email is said to be an instance of inappropriate sexualised language by reason of the use of the word "pussies".

146 Ms Styles states that the word "pussy" is a double-entendre which also refers to a vagina and imputes weakness. I accept that the term "pussy" to denote a weak person probably has a sexualised origin. It may be noted, however, that there is no other sexualised language in the email, and no other instance of that language relied upon. The proposition thus appears to be that a single instance of the use of the term "pussies" to denote weak people in an email (to an unnamed recipient) demonstrates the firm's failure to prevent inappropriately sexualised language in the workplace. I do not think the email is capable of sustaining that contention.

147 The whole of particular (g) should be struck out.

148 The last particular objected to is particular (h), which alleges that the defendants:

Had a policy of transferring employees who complained about sexual harassment to another group, which policy was communicated to the applicant by Levis in the meeting.

149 It must be remembered that the present task is only to determine whether the allegation is capable of rebutting the defence under section 106(2). In my view, a policy of transferring complainants to another group is capable of establishing the existence of a measure of hostility to such complainants such as to rebut the contention that all reasonable steps had been taken to prevent harassing conduct. Particular (h) should be permitted to stand.

Paragraph 24(a) of the reply

150 In order to understand the defendants' next objection, it is necessary to trace through the pleadings in respect of the plaintiff's victimisation claim. The claim invokes section 94 of the Sex Discrimination Act, which is set out above. It is clear from the terms of the section that the relevant detriment must be one to which the complainant was subjected on the grounds of having done one of the things listed in section 94(2)(a) to (g) or on the ground that the defendant believes the complainant has done or proposes to do one of those things.

151 Ms Styles alleges that the defendants subjected her to a detriment (ultimately, termination of her employment) because she made an allegation that employees of the defendants and the defendants had acted in breach of part II of the Sex Discrimination Act , namely, that they had engaged in sexual harassment.

152 By their defence (at paragraphs 41 and 42) the defendants in effect deny that Ms Styles had made any such allegation. In light of the contents of Mr Izzo's file note, that is a surprising position. It is explained at paragraph 41(a) of the defence, where it is asserted that, as at the date of the termination of her employment, Ms Styles had insisted on a number of occasions that she had not made any allegations of sexual harassment against employees of the defendant. It is further alleged at paragraph 41(b) that, as at the date of termination of employment, the only allegations made by Ms Styles of conduct that may have been unlawful by reason of part II of the Sex Discrimination Act were those made in relation to the framed photo and the montage.

153 The present objection relates to Ms Styles' response to that part of the defence. Ms Styles alleges in paragraph 24(a) of her reply that she was reluctant to make a formal allegation of sexual harassment to the defendants' human resource department because she was worried that to do so would destroy her career. In her letter dated 30 March 2011 to Clayton Utz (Annexure D to the affidavit of Norman Lucas sworn 6 June 2011), Ms Styles supplied further particulars of that reply, alleging that the culture created by the hostile workplace pleaded in paragraph 5(i) of the reply led to a reluctance by employees of the defendants to complain about sexual harassment. The particulars provide specific examples of other female colleagues who allegedly experienced such reluctance.

154 In my view, those particulars are simply not responsive to the defence and are wholly irrelevant to any issue in the proceedings. Ms Chrysanthou noted that section 94 extends not only to detriment imposed on the ground that a person has made an allegation of unlawful conduct but also to a detriment imposed on the ground of a belief that the person has made such an allegation or proposes to do so. However, that is not to the point. Ms Styles has expressly pleaded both that she did make an allegation of breach of part II of the Sex Discrimination Act and that the respondents believed that she proposed to make such an allegation (see paragraph 61 and 62 of the statement of claim). Any formal claim not made (due to reluctance or otherwise) is irrelevant in that context. Her case is that, whether or not she was reluctant to do so, she did make an allegation or, alternatively, that the defendants believed she had or would. The defendants deny that she had, and do not admit they believed she had or would (paragraphs 42 and 43 of the defence). On any analysis, the reluctance of Ms Styles to do something more simply does not enter into the matter. Paragraph 24(a) of the reply and the particulars supplied in respect of that paragraph in the letter dated 30 March 2011 should be struck out.

Plaintiff's application for leave to file her amended and consolidated statement of claim

155 On 24 June 2011 (less than a week before the resumed hearing in respect of the objections to the defence and the reply), the plaintiff served an amended and consolidated statement of claim seeking to add at least one new cause of action (the tort of intentional infliction of mental harm) and making substantial amendments to the existing claims. At the hearing on 30 June 2011, I dispensed with the need for the plaintiff to file a notice of motion seeking leave to file that document and stood the application over so as to afford the defendants an opportunity to give proper consideration to the document. I directed the defendants to notify the plaintiff of any objections to the document by 4 August 2011 and listed the application for hearing on 26 August 2011.

156 The defendants notified the plaintiff of a series of specific objections and did not otherwise oppose the grant of leave to amend. The afternoon before the hearing, the plaintiff served a revised version of the proposed amended pleading responding to some of the objections, together with a further 31 pages of written submissions. The hearing of the application for leave to amend nonetheless proceeded on 26 August 2011 on the basis of a revised list of objections prepared by the defendants during the hearing by reference to the new version of the pleading.

157 In light of the defendants' position, I have taken the view that leave should be granted to the plaintiff to file an amended pleading in the form circulated on 25 August 2011, subject to my rulings below determining the revised objections raised by the defendants.

158 Some of defendants' objections were maintained on the ground that the matters raised were not reasonably arguable. It does not follow, however, that the only test to be applied to those objections is the General Steel test as apparently contended by the plaintiff in her submissions in reply ( General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125). Those submissions overlooked the fact that the application before the Court was her application for leave to make substantial amendments to her pleading, including by adding a whole new cause of action, after the close of pleadings and in circumstances where the proceedings are currently listed for hearing on 6 February 2012, with a jury, with an estimate of 5 to 6 weeks.

Objection to paragraph 3A and 66A(a)

159 Paragraph 3A of the new pleading states:

On 22 January 2011 the defendant notified the AHRC that it was unwilling to participate in a conciliation conference.

160 That contention has been added to sustain a new claim in paragraph 66A(a) that the plaintiff is entitled to aggravated damages on the grounds that her distress and damage has been increased by her knowledge of the defendant's unwillingness to participate in such a conference.

161 It is doubtful whether the refusal to conciliate is capable of being relied upon as a matter in aggravation of damages in the absence of any obligation to conciliate. The defendants note that there had been no direction to them to attend a conciliation meeting pursuant to section 46PJ of the Australian Human Rights Commission Act . The position may accordingly be analogous to the position where no apology is published in response to an alleged defamation. In Carson v John Fairfax & Sons Ltd the High Court expressed the view that "the mere absence of an apology" cannot aggravate damages for defamation: [1993] HCA 31; (1993) 178 CLR 44 at [45] per Mason CJ, Deane, Dawson and Gaudron JJ; but cf Clark v Ainsworth (1996) 40 NSWLR 463 per Sheller JA at 465G to 468G and at 473E per Abadee A-JA.

162 The view expressed in Carson arguably applies by parity of reasoning in the present case, but the issue is by no means uncontroversial. In the absence of any direct authority on the point (so far as I was informed by the parties), I have concluded that I should not dismiss that part of the plaintiff's claim summarily, but should allow the point to be fully argued at the hearing.

Objection to paragraph 6A

163 Paragraphs 6A to 6E of the new pleading plead the circumstances of the plaintiff's job interview to which I have already referred. The defendants referred in their list of objections only to paragraph 6A but their objection plainly comprehends paragraphs 6B to 6E as well. By those paragraphs (and consequential amendments), the statement made by the partner who interviewed Ms Styles is now relied upon as a separate act of sexual harassment contrary to section 28B of the Sex Discrimination Act . I have reached the conclusion that it is not open to Ms Styles to bring that new allegation into her claim.

164 As explained above, Ms Styles alleges that, when she was interviewed for a position with Clayton Utz, the partner in question brought to the interview a photograph of her piranha fishing on the Amazon which he had evidently printed out from her "Flickr" page. According to Ms Styles, he said " is this you?" , to which she responded that it was. He then said " and let's not even get started talking about Marcus Day!" The partner gave no explanation for the remark.

165 In the new pleading, Ms Styles now alleges that there was also posted on her Flickr page a photograph of her taken at Randwick Racecourse on 7 April 2007. Ms Styles alleges that, as at the date of her interview on 16 May 2007, her friend Marcus Day had recently posted comments about her breasts beneath that photograph. I note that Mr Day made remarks of that kind directly to Ms Styles in an email exchange following the job interview: see page 57 of the complaint to the Human Rights Commission. Notwithstanding the contents of Mr Day's email, Ms Styles evidently drew no connection at that time between the Randwick Racecourse photo and the reference to Marcus Day during the interview at that time. It is asserted in Ms Styles' submissions in reply that it was not until she reviewed the emails obtained on subpoena from Mallesons in light of comments made in Court on 30 June 2011 (I think by me) that she perceived any such connection.

166 In light of that further analysis, Ms Styles has inferred (in hindsight) that the Marcus Day remark (made at the time the partner presented the piranha photograph) was either a reference to a gay porn star (as discussed above) or an oblique reference to Ms Styles' breasts. For reasons explained below, I do not think it is open to Ms Styles at this stage to rely upon that conduct as a separate allegation of sexual harassment.

167 The difficulty is that, although the circumstances of the job interview were recited in Ms Styles' complaint to the Australian Human Rights Commission (at paragraphs 13 to 15 of the complaint), the conduct was not characterised as sexual harassment at that time. As explained above, the characterisation of that conduct as being of a sexual nature has come to Ms Styles only in hindsight and due to the litigation. The defendants accordingly submit that the new complaint is precluded from being raised both on the proper construction of section 28A and by reason of the application of section 46PO(3) of the Australian Human Rights Commission Act .

168 The plaintiff submitted that section 46PO(3) poses no hurdle to the new claim. In support of that submission, reliance was placed on the decision of the Full Federal Court in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 especially at [46]. A number of principles emerge from that passage of the judgment. First, it is recognised that section 46PO(3) "contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination ". Conversely, it is acknowledged that section 46PO(3) operates as an important constraint upon the ability of a complainant to seek relief from the Court in respect of a complaint not previously raised for consideration by the Commission. Separately, it is acknowledged that a complaint ought not be construed as a pleading or equated to a criminal indictment.

169 The circumstances considered in Dye were, however, very different from the present case. In that case, the complainant had nominated two instances of sexual misconduct in her complaint to the Commission. A third (more serious) complaint of sexual assault had been made to police but not included in the complaint to the Commission. The Full Court held that the Judge at first instance was wrong to exclude the third incident from being determined in the proceedings in the Federal Court. An obvious difference in the present case is that, in Dye , the complainant plainly identified the conduct as sexual conduct at the time it occurred (it could hardly have been anything else) and made a complaint to that effect to police.

170 In the present case, it is clear that Ms Styles did not attribute the conduct of the partner who interviewed her with any sexual nature until after the commencement of these proceedings. Ms Styles insists that some of the facts now pleaded are within the terms of the complaint but that misses the point. Those facts were not raised in the complaint as the basis for a justiciable allegation of sexual harassment for the Commission to inquire into and attempt to conciliate. The point of section 46PO is to confine matters that may be litigated in Court to allegations of breach that have been through that filtering process.

171 Further, on the proper construction of section 28A, in my view, there had been no sexual harassment as now complained of either at the time the complaint was lodged with the Commission or at the time these proceedings were commenced. That is because, in my view, sexual harassment must be conduct that is "unwelcome" to the recipient. In my view, the contrary contention put on behalf of Ms Styles is inconsistent with a plain reading of the section itself and is contrary to authority.

172 In her original submissions, it was submitted on behalf of Ms Styles that there is no subjective requirement that the conduct be unwelcome to the recipient and that the only test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Thus it was submitted that the date on which the victim finds out about the conduct is irrelevant, since the test is objective. Ms Styles submitted that the test is not whether the person was subjectively offended, humiliated or intimidated but whether a reasonable person would have anticipated the possibility that they would be.

173 Support for that contention was said to be found in the judgment of French J (as his Honour then was) in Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217 at 277 where his Honour said:

In my opinion the characterisation of conduct as sexual harassment cannot depend upon the subjective response of its object except insofar as the section requires it to be unwelcome (my emphasis).

174 In my view, the emphasised portion of that passage supports the proposition that, in addition to satisfying the "reasonable person" part of the test, the conduct must be unwelcome to the complainant. The judgment of Wilcox J at 247.2 is to like effect. His Honour said:

The subsection does not treat as sexual harassment all conduct of a sexual nature. The relevant conduct must be "unwelcome", that is, unwelcome to the recipient of that conduct (my emphasis).

175 Wilcox J cited the judgment of Spender J in Aldridge v Booth (1988) 80 ALR 1 at [5] where his Honour said:

By "unwelcome", I take it that the advance, request or conduct was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive (my emphasis).

176 Authority to the same effect may be found in O'Callaghan v Loder [1983] 3 NSWLR 89 at 103G to 104A per Mathews DCJ (as her Honour then was), cited with apparent approval by Moore J in Elliott v Nanda [2001] FCA 418 at [108]. In O'Callaghan , her Honour said:

it is a pre-condition of liability that the complainant show both that the conduct was unwelcome in fact and that the employer either knew or ought to have known this.

177 The principle that the sexual conduct must be subjectively unwelcome to the complainant has been applied consistently in decisions of the Federal Magistrates Court: see for example Horman v Distribution Group [2001] FMCA 52 per Raphael FM at [44] and [64]; Noble v Baldwin and Anor [2011] FMCA 283 per Barnes FM at [233-235].

178 In my view, further support for that construction is to be found in section 28A(2), which provides:

(2) In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person , whether the statement is made orally or in writing (my emphasis).

179 In her written submissions in reply, Ms Styles expanded upon her submissions on this issue, as follows:

To the extent that, at first glance, the Defendant's argument finds support in authorities that suggest that whether conduct is relevantly "unwelcome" depends on the "subjective response of the object": Hall v Sheiban (1988) 20 FCR 217 at 277 (per French J), that glance is specious. The Defendant's argument is not beyond debate. In the statutory definition of sexual harassment, the word "unwelcome" is used in the infinitive form: "unwelcome conduct" "in relation to". It means "not welcome to". The Australian Oxford Dictionary defines the infinitive form of welcome as "cordially allowed or invited; released of obligation". It imports positive action on the part of the subject. It requires the subject to issue an invitation, or provide a positive indication of cordiality or mutuality.

By contrast "unwelcome to" is a negative requirement. It involves a lack of positive action, or subjective encouragement. This textual analysis accords with the often cited judicial statement of the test: "By 'unwelcome', I take it that the advance, request or conduct was not solicited or invited by the employee and the employed regarded it as undesirable and offensive": Aldridge v Booth (1988) 80 ALR 1 at 5 (Spender J); Hall v Sheiban at [247] per Wilcox J.

180 If I have understood those submissions correctly, the proposition appears to be that the requirement that the relevant conduct be "unwelcome" is met if the complainant establishes that there was no positive act on her part soliciting or inviting the conduct in that she did not issue an invitation, or provide "a positive indication of cordiality or mutuality" . On that reasoning, it is contended that conduct can be "unwelcome" even if the complainant is unaware of it, so long as it is conduct that has not positively been solicited or invited.

181 I do not think that argument is sustainable. In my view, the phrase "unwelcome conduct" plainly means conduct perceived by the complainant as unwelcome. The remedies conferred by the Australian Human Rights Commission Act accrue to a person "aggrieved" by the alleged unlawful discrimination: see s 46P of the Act. In my view, even if the conduct in question were plainly of a sexual nature, there could be no accrued right to seek redress under the Act for sexual harassment within the meaning of the Act if the person to whom the conduct was directed was not aware of the aspect of the conduct that (allegedly) made it sexual.

182 It follows, in my view, that no right to seek a remedy under the Australian Human Rights Commission Act in respect of the alleged unlawful discrimination of Ms Styles by the partner who interviewed her had accrued at the time these proceedings were commenced. It is not a question of further damage or later events relevant to the same cause of action: cf Baldry v Jackson (1976) 1 NSWLR 19 at 27E. What is sought to be relied upon now is a discrete breach of part II of the Sex Discrimination Act allegedly committed by a different employee for whom the defendants are vicariously liable. Although that person is a defendant to the proceedings (being a partner of the firm) he has not previously been the subject of any justiciable complaint against him personally.

183 Even if my analysis of that issue is wrong, in my view the new claim falls at the hurdle of section 46PO(3). I do not think that the conduct against the partner in question is "the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint".

184 As noted on behalf of the defendants it is appropriate, in considering whether a new claim falls within that description, to consider the terms in which the Commission summarised the complaint in the termination notice. The notice in the present case dated 29 April 2010 summarises Ms Styles' complaints by reference to a remark made in August 2008 by a different partner of the firm during a performance review meeting (allegedly suggesting that women are weak); an allegation that the work environment in the Workplace Relations group was hostile to women and the allegations concerning Mr Izzo. I do not think on any sensible view that the new complaint could be said to fall within the scope of those complaints.

185 Leave to file an amended pleading including allegations in the terms of paragraphs 6A to 6E (and the consequential allegation in paragraph 34A) is refused.

A series of miscellaneous objections

186 The defendants had an objection to paragraph 11(a)(ii) of the new pleading but I took that objection to be effectively abandoned during the course of argument. In case I am wrong, I indicate that, in my view, the plaintiff should have leave to include that particular, which relates to an email dated 29 August 2007 from Mr Izzo to Mr Young relied upon to sustain the contention that Mr Izzo falsely represented (as at that date) that he and Ms Styles had had sex.

187 The next objection is to paragraph 11(b) of the new pleading and specifically to the inclusion of a reference to Marcus Day as a Flickr member. The only relevance of that allegation arises from the job interview allegations (giving rise to the need to distinguish between the two Marcus Days). Since I have concluded that leave should not be granted to plead those allegations, that reference should be removed from the pleading.

188 The next objection relates to the substance of particular 11(b) in which the plaintiff complains that Mr Izzo published from his work email address or computer sexually explicit or sexualised remarks about the plaintiff. It is clear from paragraph 30 of the new pleading that the plaintiff means to rely upon those allegations as new allegations of sexual harassment. It is acknowledged that her awareness of them derives from emails obtained after the commencement of these proceedings. In those circumstances, for the reasons outlined above, I do not think that the Court has jurisdiction to address them (since the plaintiff was not aware of their existence prior to the commencement of the proceedings and, accordingly, the conduct complained of could not have satisfied the element of the cause of action of being unwelcome prior to the commencement of the proceedings).

189 In case my analysis of that issue is wrong, I indicate that, had I concluded otherwise, I would have held that those allegations were permitted under section 46PO to be raised, since they arise from the same facts as the facts of which Ms Styles complained to the Commission.

190 The next objection is to paragraph 13 of the new pleading, which states:

On 31 August 2007, at or about 7 pm, at Ryan's Bar in Sydney, Knuckey told Justine Figgott, a friend of the plaintiff's of the representation pleaded in paragraph 11(a)(i).

191 The defendants complain that, by reason of the cross reference to paragraph 11(a)(i), the pleading is nonsensical. I disagree. Paragraph 11(a)(i) of the pleading asserts that, in late July or early August 2007, Mr Izzo falsely represented to Mr Knuckey that Mr Izzo and Ms Styles had had sex. The import of paragraph 13 of the new pleading is to assert that Mr Knuckey told Ms Figgott what Mr Izzo had told Mr Knuckey. Paragraph 15 of the pleading closes the circle, contending that the plaintiff became aware of that discussion shortly after she and Mr Izzo had consensual sex on 1 September 2007. Leave should be granted in respect of that paragraph.

192 The next objection is to paragraph 14 of the new pleading. Previously, that paragraph stated that on 1 September 2007, the plaintiff and Mr Izzo had consensual sex. The new pleading seeks to amend that contention by asserting that the event in question happened "early in the morning, after Izzo and a number of senior associates of the defendant purchased a number of drinks for" Ms Styles. Since it is no part of the plaintiff's case that the event of consensual sex in itself amounted to sexual harassment, my first impression was that the new allegation was scandalous and should be excluded from the grant of leave. However, on further reflection after receiving the plaintiff's submissions in reply, I accept that it is arguably a circumstance relevant to the objective assessment of the likelihood that gossip within the firm about that event would "offend, humiliate or intimidate" the plaintiff.

193 The next objection is to paragraph 15, which seeks to contend, as a new allegation, that the reason Ms Styles ended her personal relationship with Mr Izzo was as a result of finding out that he had told Mr Knuckey (falsely) about having sex with Ms Styles before that had in fact occurred. I was initially troubled by that contention, simply because it appears to be inconsistent with other material I have seen. On balance, however, I am satisfied that it is a material allegation relevant to an assessment of the relationship between Mr Izzo and Ms Styles, which is central to an assessment of the conduct of which she complains, and that it should accordingly be allowed.

194 The next objection is to paragraph 16, which previously complained that, after 1 September 2007, Mr Izzo represented to employees of the defendant that he and Ms Styles had had sex. The amendment seeks to add that the whole representation was that Mr Izzo and Ms Styles had had sex, that she was "crazy" and that he didn't otherwise know her. The defendants complain that the amendments add nothing to the characterisation of the representation as sexual. The plaintiff's response is that the import of the amendment is to put the whole of the representation. In my view, although the further allegations are not specific to the sexual component of the alleged representation, they are capable of informing its assessment. A tender reminiscence about a former flame may well be assessed differently from a boastful claim of a single encounter with a woman who was attractive but crazy.

195 A separate complaint is that, by reason of the rolled up representation, it is impossible to know the content of each individual occasion on which it is alleged to have been made. In my view, that is a matter for particulars and not a basis for striking out that part of the claim. In any event, the plaintiff has indicated in her written submissions dated 25 August 2011 that her case rests upon representations in that form, that is, she asserts that Mr Izzo made rolled-up representations.

196 The next objection is to paragraph 16A of the new pleading, which states:

The defendant knew the conduct pleaded in the premises in paragraph 16 had occurred and was unwelcome from at least on or around 22 September 2008.

197 The defendants submitted that the proposed new paragraph does not plead a material fact and is not germane to any issue in dispute. The paragraph is pleaded as going to the issue of vicarious liability. The particulars to the paragraph assert that Mr Izzo informed a senior partner and special counsel of the firm about a complaint made by Ms Styles to him as to a rumour he was evidently spreading. In my view, that material is capable of informing the plaintiff's contention that the defendants are vicariously liable for Mr Izzo's conduct as being "in connection with" his employment.

198 Separately, the defendants complained that the pleading was redundant because the unwelcomeness of the conduct is separately pleaded in paragraph 29A. In my view, that is a trivial complaint which, in the context of the sheer number of complaints brought forward for the Court's determination, ought in the interests of furthering the overriding purpose to have been passed over.

199 The next objection is to paragraph 16B which alleges that, prior to the representations and remarks allegedly made by Mr Izzo, the plaintiff was regarded by senior management at Clayton Utz as a "very strong candidate" whom the firm should do its utmost to persuade to accept its offer of employment. Amongst the defendants' objections to that paragraph is the complaint that it is not a material fact and not germane to any issue in dispute. In my view, there is force in that complaint. The relief available under section 46PO of the Australian Human Rights Commission Act should not be confused with damages for harm to reputation. Paragraph 16B should not be permitted to be included in the new pleading.

200 The next two objections relate to the addition, in paragraphs 18 and 20 of the pleading, of the information that certain employees of the defendant referred to in the existing pleading were employed in the Mergers and Acquisitions Group. The defendants contend that the proposed words are not a material fact and are not germane to any issue in dispute. I am not persuaded that the additional information is immaterial and in any event I regard that as a trivial objection which ought to have been passed over. I would reject the objection on that basis.

The photo montage

201 The next objection is to paragraph 25 of the new pleading where, for the first time, the plaintiff provides a description of the photo montage including a series of contentions as to ways in which the montage is alleged to be a sexualised portrayal of Mr Izzo. I have concluded that the particulars must be rejected in their present form. In order to explain why that is so, it is necessary to set out the new allegations:

(a) The Montage contained a photo of Izzo making a sexualised hand gesture.

Particulars

(i) The "cuckold" gesture is understood in Italian culture (as well as Anglo-Australian culture) as an obscene curse was well as an accusation of cuckoldry. It is formed by extending the index and little fingers while holding the middle and ring fingers down with the thumb.

(ii) Izzo is of Italian descent, as is Catanzariti.

(b) The Montage contained three text bubbles.

Particulars

One of the text bubbles equated Izzo with a parody of a sexually desirable male model, Derek Zoolander, a character from the 2001 film Zoolander, in that it contained the following quote from Zoolander:

"[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 that that is"

(c) The Montage contained 18 photos of parts of Izzo's face, including:

(i) photos in which Izzo approximates the "Blue Steel" pose made famous by the character Derek Zoolander, in the movie Zoolander;

(ii) one photo in which Izzo's eyes are closed and he appears to be post coital or intoxicated;

(iii) photos in which Izzo is holding phallic like objects to his mouth, such as a buttle and a burrito;

(iv) a photo in which Izzo almost touches his chin with his tonge; and

(v) a photo of his tongue.

(d) The Montage was A3 in size and was positioned so that every time the Plaintiff walked in or out of her office, or spoke to someone who was standing at the door of her office she could not avoid seeing it.

202 Contrary to the defendants' submissions, the suggestion that the montage was in some way sexualised is not entirely new. In her complaint to the Human Rights Commission, Ms Styles described the montage and the framed photo as "jokes of a sexual nature parodying Luis Izzo's sexual desirability" (I would have thought, rather, that the joke was to parody male vanity rather than sexual desirability but for present purposes, it does not matter). The difficulty lies in the way the pleading seeks to make good that contention.

203 The principal vice of the new particulars is the elision of the material facts upon which Ms Styles relies for the conclusions drawn by her. The blurring of fact and conclusion leaves the pleading ambiguous as to whether the alleged sexualisation of Mr Izzo by means of the montage was something Ms Styles perceived in August 2008 or whether (as contended on behalf of the defendants) those contentions represent a revisionist analysis of the material in hindsight and with an eye on the present litigation. It also makes it impossible for the defendants to plead to the objective reasonableness of the asserted conclusions, which is not an unimportant issue.

204 For example, as to the alleged "cuckold" gesture, the way in which the claim is pleaded is:

(a) to contend that the gesture depicted in the photograph was (objectively) a sexualised hand gesture;

(b) to contend (in paragraph 25C) that the placement of such a sexualised image outside the plaintiff's office was unwelcome in that its presence was not invited or solicited by the plaintiff and that she regarded it as "undesirable".

205 In my view, an additional essential element of such a claim, which has not been pleaded, is that the alleged sexualised aspect of the conduct was perceived by Ms Styles and made the conduct unwelcome to her at the relevant time. It is not enough in my view to say, as at the time of determination of the issues in the litigation, that (in hindsight) the montage bore that sexualised character. Its placement in full view of the plaintiff in August 2008 could only amount to sexual harassment, in my view, if Ms Styles perceived it as being sexualised in that respect at the time and, further, if that perception contributed to its being unwelcome to her at the time.

206 The same reasoning applies in respect of the contention that the text bubble equated Mr Izzo with "a parody of a sexually desirable male model"; the contention that Mr Izzo was, in one of the photographs, approximating a pose made famous by that character; the contention that Mr Izzo appeared "post coital" in one of the photographs; the contention that in some of the photographs he was holding the objects to his mouth that were "phallic like" and the complaints about the photographs showing Mr Izzo's tongue. The sexualisation is in each instance a matter of conclusion or perception, and must be pleaded to have been viewed as such at the relevant time by the plaintiff, and unwelcome to her on that account (if that be the case). In my view, the plaintiff should not have leave to amend paragraph 25 as proposed or to include new paragraphs 25C or 26B for those reasons.

207 The defendants also object to paragraph 25A, which asserts that Mr Izzo's office was on another side of the building (from the office in which the montage appeared). In my view, that paragraph is capable of being relevant to Ms Styles' contention that the montage was deliberately placed where she would have to see it. That paragraph should be allowed.

The framed photograph

208 Paragraphs 27(a) to (h) replead the complaint about the framed photograph. The defendants' first objection is that the plaintiff should be limited to particulars she provided on 7 September 2010. Apart from as to paragraph 27(h), I see no force in that contention, since there appears to be no prejudice in allowing the plaintiff to refine her claim. As to paragraph 27(h), however, the position is different.

209 Paragraph 27(h) alleges that the intranet photo "was understood to have sexual connotations within the Workplace Relations group". That contention is, in turn, sought to be sustained by reference to two emails circulated within the Workplace Relations group.

210 The only connection between the emails and the plaintiff is that she asserts (in paragraph 27(h)(iii)A) that she was "informed of the existence" of one of the emails on or about 3 August 2008. The plaintiff does not assert that in light of her knowledge of the contents of that email, she perceived the framed photo as having sexual connotations at the time it was placed in view of her office. The proposition that a standard head and shoulders shot of a man in a suit could have sexual connotations is, in my view, untenable. Paragraph 27(h) should be excluded from the leave to amend.

211 The next objection is to paragraph 27A, which asserts that the framed photo, the montage and the post-it note were the product of a broader culture of sexist, sexually suggestive and lewd comments, jokes, pranks, remarks and sexual innuendo in the Workplace Relations Group. That allegation is supported by a series of particulars of emails between people employed in that group from as early as February 2006 to August 2008. It is not clear what relevance those contentions have to the breaches of the Act pleaded by the plaintiff. As already noted, the plaintiff has expressly disavowed any reliance on a discrete allegation of sexual harassment based on the existence of a hostile work environment. In the absence of any such claim, in my view, the allegations in paragraph 27A and the particulars thereto are irrelevant to the plaintiff's claims and are embarrassing on that account.

212 The next paragraph objected to is paragraph 27B, which states:

The plaintiff was so humiliated, offended and intimidated by the appearance of the framed photo outside her office beside the montage it made the plaintiff feel physically ill, which is to say it was unwelcome.

213 The defendants' objections to that paragraph may be summarised as amounting to a complaint that the allegation is not a material fact and is neither necessary nor relevant to the plaintiff's claims. In my view, the allegation does not so obviously fall foul of proper pleading practice as to warrant being struck out. The plaintiff's description of a physical reaction to the conduct is capable of being relevant to an assessment of her claim, in my view.

214 The objection is to paragraph 29A which relates, broadly, to the contention that the conduct complained of in earlier paragraphs was unwelcome. The gist of the defendant's objection to the paragraph (without meaning to do any disservice to the more detailed points made) is that the allegations ought to have been made earlier and still are not adequately particularised. I see no vice in the proposed paragraph, which in my view identifies material facts relied upon by the plaintiff in support of her contention that the conduct of which she complains was unwelcome. The plaintiff should have leave to include that paragraph in her amended pleading.

215 The defendants had an objection to paragraph 40 of the proposed amended pleading but I understood that objection effectively to have been withdrawn during argument. In case I am wrong, I indicate that I see no vice in that paragraph.

The tort of intentional infliction of mental harm

216 The next objection is to paragraphs 41A to 41J of the new pleading, which plead an entirely new cause of action of intentional infliction of mental harm.

217 The first objection to the pleading of the new cause of action is that the explanation for the delay in pleading the cause of action is insufficient. I reject that submission. In my view, the delay is not inordinate. Further, there is an explanation of sorts. The application to amend was supported by the affidavit of Ms Styles' solicitor, Mr Kalantzis. It should be acknowledged that Mr Kalantzis only came onto the record on 22 July 2011 and, accordingly, that his affidavit is based exclusively on information and belief. Nonetheless, Mr Kalantzis explains that Ms Styles only obtained documents relevant to the cause of action after she commenced these proceedings. In particular, she obtained a series of emails on subpoena from Mallesons in December 2010 and was only released from the implied undertaking (not to use that material for any other purpose) in March of this year. In those emails, Mr Izzo expressly adverts to the risk that the plaintiff may cause herself harm upon receiving his file note.

218 I should note that Ms Styles, in her particulars of that email in the new pleading, has selectively quoted from the remarks made by Mr Izzo. The parts quoted shed him in a wholly bad light. In fairness to him, the full content of the email should be made known. It is an email from Mr Izzo to Marcus Day and Rowan Mawa following his informing them that his "3 page statement" (presumably his file note) was being presented to Ms Styles that afternoon. In an email sent the following morning Mr Izzo states (apparently directing the remark to Mr Day):

Mate, you may need to speak to her ... she's so unstable she may cause self harm ... maybe you can get her to seek professional help??? The blood is on all of our hands if she does something terrible to herself ...

219 Although the defendants contended that part of the basis for this claim was well known to the plaintiff before she commenced the proceedings, it was accepted that the contents of Mr Izzo's email formed a key contention for the intentional tort. As already noted, that email was only acquired upon subpoena after the commencement of the proceedings and only made available for use in these proceedings from March of this year.

220 Subject to one issue to which I will come shortly, I am not persuaded that the plaintiff ought to be precluded from raising the new cause of action on what are now generally termed " Aon grounds", namely, 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) .

221 However, a separate complaint made by the defendants must be considered. The defendants submitted, correctly in my view, that the claim attracts the obligation on a plaintiff to comply with rule 15.12 of the Uniform Civil Procedure Rules (which mandates the provision of certain particulars and documents in personal injury claims). Rule 15.12 applies to "a claim for damages in respect of personal injuries arising from any event ( the accident )". It was submitted on behalf of the plaintiff that the claim does not attract the application of that rule, since the alleged intentional tort is not an "accident".

222 In my view, the rule plainly applies to a claim for psychiatric illness allegedly arising as a result of an intentional tort. I propose that the leave to amend to include that claim be conditional upon compliance by the plaintiff with rule 15.12.

223 A discrete complaint in respect of the pleading of the intentional tort relates to paragraph 41E, which asserts that Mr Izzo's file note was a false and misleading statement motivated by malice and created by Mr Izzo for improper purposes, including the purpose of removing the plaintiff from the Workplace Relations group prior to his return from secondment. The defendants' complaint as to that paragraph is that, in lieu of providing particulars of that allegation, the plaintiff merely "refers to and repeats the particulars of Mr Izzo's malice contained in the reply in the related defamation proceedings".

224 The plaintiff's legal representatives at the hearing of the amendment application evidently regarded that as a derisory objection. I disagree. The "particulars of Izzo's malice contained in the reply" comprehends a vast array of allegations in separate documents. Neither the defendants nor the Court should be expected to move from pleading to pleading to correspondence in order to understand the plaintiff's case. The alleged malice and improper purposes should be properly particularised within the pleadings in these proceedings.

225 Subject to those matters, however, I am satisfied that the plaintiff should not be precluded from prosecuting the new cause of action. However it does, in my view, put the hearing date (presently scheduled for 6 February 2012 with an estimate of six weeks) in doubt. Plainly if that date has to be vacated, as a result of allowing the new claim, the plaintiff will have to bear the defendants' costs thrown away. It remains to be determined following the determination of the pleading disputes what will be the format of that hearing and, in particular, the question whether all causes of action can or should be heard by a jury.

226 The next objection is to paragraph 44(a) of the new pleading together with the particulars of that paragraph. The plaintiff there asserts, in support of her discrimination claim, that the defendants subjected her to a detriment in that they did not properly investigate her "concerns in relation to the montage and the framed photo". The particulars then refer back to the new allegations as to the ways in which those items were allegedly sexualised. Specifically, the plaintiff contends that the defendant "failed to but should have identified" the matters set out in those paragraphs.

227 In my view, that contention is plainly unsustainable. The proposition appears to be that the defendants ought to have investigated such concerns even though they were not raised by the plaintiff at the relevant time. Implicitly, it is contended that the defendants ought to have inspected the photo montage and seen in it the same sexual connotations as the plaintiff now sees and, further, that they then ought to have investigated those matters. To trace the proposition through to its logical end, the defendants ought to have identified the photograph in which Mr Izzo has his eyes closed as being a photograph of him "post coital"; properly investigated whether that was so; properly investigated whether those who put the montage together knew that was so and then considered whether the placement of the montage in full view of a woman rumoured to have had sexual intercourse with Mr Izzo amounted in those circumstances to unwelcome conduct of a sexual nature. In my view, the proposition only needs to be fully articulated in order to be rejected.

228 The next collection of objections relates to the particulars of exemplary damages claimed in respect of the intentional tort and the victimisation claim. The first relates to paragraph 66(g) where the plaintiff complains that the termination of her employment occurred "a week and a half before Christmas, in the middle of the global financial crisis" and in circumstances where the defendant was on notice that the plaintiff had been hospitalised in November 2008. The defendants' complaint is that those are matters for evidence, not material facts to the claim for exemplary damages. Without expressing any view as to the strength of the considerations relied upon, I disagree that they are matters for evidence. If the plaintiff seeks to rely on those matters, they are properly pleaded in my view.

229 The next objection is to paragraph 66(h) in which the plaintiff claims exemplary damages in respect of the defendants' conduct "in either recklessly losing, or destroying, the montage in early 2009 and thereby rendering it unavailable in these proceedings and the related defamation proceedings". The basis for that contention is that it was "always likely" that legal proceedings would be commenced in relation to which the montage would be required.

230 An affidavit sworn by Mr Lucas on 23 May 2011 states, on information and belief, that the montage was either lost or destroyed when another solicitor employed by the firm moved office in about July 2009. That was before the applicant filed her complaint with the Australian Human Rights Commission on 31 August 2009. I do not think that the particulars provided are capable of sustaining a claim for exemplary damages on that account. The plaintiff should not have leave to file a pleading including paragraph 66(h).

231 The next objection is to paragraph 66A of the new pleading by which the plaintiff claims aggravated damages on two grounds. The first relates to the conduct pleaded in paragraph 3A of the new pleading, which I have rejected. The second relates to the defendants' conduct in pleading the defence of truth in the defamation proceedings. The defendants submit that the conduct of the defamation proceedings is not capable of being taken into account in aggravation of the plaintiff's damages in these proceedings. There may well be force in that contention, but I think it is an issue that should be reserved for the trial. I do not think it is plainly unarguable.

232 Finally, the defendants object to paragraphs 67(a) and (b) of the new pleading, which articulate a claim for breach of contract. The defendants complain that the plaintiff has failed to particularise those matters, despite the defendants' request. In the way in which the argument on the new pleading unfolded (the defendants having been placed in a position on each occasion of having to address detailed material provided only shortly before the hearing), I do not believe the defendants addressed that contention in oral argument, although I may be wrong. I am unable to judge the force of the contention as briefly stated in the written list of objections. Unfortunately, that issue will have to be reserved for further argument.

Orders

I make the following orders:

1. That, subject to compliance with rule 15.12 of the UCPR, the plaintiff be granted leave to file an amended statement of claim in accordance with these reasons;

2. That the plaintiff's application to have parts of the defence struck out be dismissed;

3. That the defendants provide further particulars of the defence in accordance with these reasons;

4. That particulars 5(i)(e), (f) and (g) and paragraph 24(a) of the reply be struck out.

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Decision last updated: 28 November 2011