Plaintiff claims unlawful discrimination in statement lawyers filed in workers compensation case
A High Court justice has dismissed an application for a constitutional or other writ arising from the plaintiff’s terminated complaint with the Australian Human Rights Commission (AHRC) to allege unlawful discrimination by or on behalf of Comcare, the first defendant.
In Rindeklev v Comcare & Anor, [2025] HCASJ 29, the plaintiff requested workers compensation for her injury arising from her employment with a Commonwealth agency. In March 2023, she filed an AHRC complaint claiming unlawful discrimination on Comcare’s part.
According to the complaint, the plaintiff’s ex-co-worker made a statement in the workers compensation proceedings before the Administrative Appeals Tribunal. The lawyers retained on Comcare’s behalf filed the statement, which provided that the plaintiff had undertaken sex work. The plaintiff asserted that this evidence was irrelevant to the proceedings.
In January 2024, a delegate of the AHRC president terminated the complaint upon finding it misconceived or insubstantial.
The plaintiff applied for leave to bring proceedings against Comcare based on its alleged unlawful discrimination.
In July 2024, Justice Colvin of Australia’s Federal Court exercised the court’s original jurisdiction, vested by the Australian Human Rights Commission Act 1986 (Cth), and denied the requested leave to commence the proceedings.
Last April, Justice Feutrill of the Federal Court exercised the court’s appellate jurisdiction, dismissed the plaintiff’s application for leave to appeal Colvin’s decision, and ordered the plaintiff to pay the application costs.
Last June, the plaintiff applied for relief through constitutional or other writs directed to the Federal Court of Australia, the second defendant in this case.
A single justice of the High Court of Australia refused to issue the requested constitutional or other writs and ordered the plaintiff to pay Comcare’s costs of and incidental to the application.
The court discussed the four grounds the plaintiff included in her application and supporting affidavit to assert her entitlement to the writs.
First, the court saw no substance in the plaintiff’s argument that Justice Colvin failed to assess her AHRC complaint. The court determined that the complaint Colvin described corresponded with the subject matter of the AHRC complaint.
Second, the court held that the plaintiff mischaracterised Colvin’s reasons as accepting that the conduct subject of the complaint breached the Sex Discrimination Act 1984 (Cth) (SDA), yet requiring the complaint to show “something more.”
The court explained that Colvin acknowledged that the alleged conduct might be unwelcome, humiliating, and offensive, but decided that it was not of a sexual nature within the SDA’s definition of sexual harassment.
Third, the court rejected the plaintiff’s argument that Colvin failed to state the applicable legislative provisions and thus failed to “integrate and deliberate on the opposing contentions.” The court said Colvin correctly noted the effect of the SDA’s sexual harassment definition and had no obligation to include the statutory provisions’ entire text.
Fourth, the court disagreed with the plaintiff’s argument that Colvin exceeded jurisdiction by wrongly requiring evidence beyond the bounds of a leave application and mischaracterising the proceeding as a merits review.
The court found no basis for the requested relief without any jurisdictional error alleged on the part of Justices Feutrill or Colvin. The court saw no reason to conclude that Feutrill misconceived the nature of the function for weighing whether to grant leave to appeal.
