A Brisbane couple who was stalked and sexually harassed by a neighbour has won the right to sue him and his former employer Telstra.
Bulimba property owners Darren and Michelle Weir successfully appealed a Federal Court decision made in August that they could not begin proceedings against the telco and their neighbour Dipjit Bose under Section 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) for sexual harassment in contravention of the Sex Discrimination Act 1984 (Cth) (the SDA).
In their decision published yesterday, Acting Chief Justice Collier, and Justices Rangiah and Thomas outlined the history of the case.
In March 2021 the Weirs lodged a complaint with the Australian Human Rights Commission alleging Bose sexually harassed them between September and November 2017, and that Telstra was vicariously liable because its employee Bose accessed the couple’s customer information through the telco’s IT infrastructure.
They alleged Bose placed online advertisements which offered the Weirs’ participation in various sexual activities and provided their contact details, and that he sent them pornographic emails.
“The appellants also allege that in consequence of the advertisements, strangers sent pornographic emails to the appellants, and attended their home, sent text messages and made phone calls to them seeking to engage in the advertised sexual activities,” the justices said.
In October 2021, the couple’s complaint was terminated on the grounds it was not warranted.
The Weirs then began Federal Court proceedings against Telstra and Bose, claiming declarations, compensation and other relief for alleged contraventions of ss 28G(1) and 28L of the SDA and ss 18 and 60 of the Australian Consumer Law, and for misuse of confidential information, breach of privacy, nuisance and trespass.
The primary judge found that “the inevitable conclusion was that the conduct concerned occurred in the course of a private dispute between neighbours, not in the course of the provision of services by the second respondent to the appellants”, and refused the application.
In their appeal of the decision, the Weirs argued the judge had erred in the construction and application of the expressions “in the course of” and “in connection with the employment of the employee”.
“The appellants contend that the acts of the second respondent were sufficiently closely connected with the services Telstra provided and its Commonwealth functions and programs, as well as with the services that the second respondent was required to provide by virtue of his employment, to establish an arguable case that the acts were done in the course of providing those services or programs,” the justices said.
Bose argued the Weirs had conflated the conduct of himself and Telstra, and it was Telstra that provided a service to the Weirs, and under a “universal service obligation”.
He said the Weirs had not identified any service he provided to them, nor any function, power or responsibility he had under the universal service obligation.
The Justices said it was evident sexual harassment could occur both in the course of providing services and in the course of some dispute, or for some other motivation, unrelated to the services provided.
“The primary judge’s construction of s 28G(1) of the SDA such that if sexual harassment occurs in the course of a private dispute it cannot occur in the course of the provision of services was, with respect, erroneous,” they said.
The Justices said Telstra granting Bose access to the Weirs’ personal information had created the opportunity for him to sexually harass them, and it “seems at least arguable that the creation of such an opportunity provides sufficient connection to allow it to be determined that the sexual harassment occurred ‘in the course of providing services’”.
They ordered the appeal be allowed and the orders of the primary judge be set aside.
They also ordered that Telstra and Bose pay the Weirs’ appeal costs.
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