Piper Alderman’s kitchen sink drama … Who’s bullying whom? … Injunction preventing meeting to sack property partner discharged … Human rights complaint against law shop still on foot … The workplace and women lawyers … Allegations at 10 paces … Insulting emails … Sex had nothing to do with it
In a judgment last week, Justice John Nicholas refused an injunction to prevent the partner’s expulsion, finding that there was no prima facie case for sex discrimination at all.
In late October 2018, two junior lawyers complained that Lexia Wilson, a property partner, had bullied them. The firm’s managing partner, Tony Britten-Jones, referred the accusations to Sydney barrister Penny Thew.
She investigated the complaints, delivering her report in late December. What exactly she found is unclear, but by early January Britten-Jones had removed Wilson from all leadership positions at the law shop, and arranged that she work from home.
Wilson went to Mills Oakley partner Malcolm Davis. On January 14, he fired off a letter to Piper, accusing Britten-Jones of bullying his client. The entire investigation, he claimed, had been flawed – documents falsified, witnesses had lied, and the barrister had not put key allegations to Wilson.
Davis also said his client had defamation claims against the two complaining junior lawyers – who were still working at the firm.
Piper responded the next day. It wrote that Wilson was hereby excluded from the workplace, and would remain excluded if she did not retract her defamation threats. It also denied the allegations of bullying.
Wilson took a step back and, after giving a few undertakings, was let back into Piper’s Farrer Place gaff. Davis could not, however, resist one last potshot on her behalf:
“Mr Britten-Jones has, by his actions and omissions, engaged in a course of unlawful, unreasonable, offensive, bemeaning [sic], belittling, victimising, intimidating, threatening and other inappropriate conduct.”
On January 23, Piper Alderman notified its partners there would a meeting to expel Lexia Wilson from the partnership. The meeting was slated for February 5.
One week later, Lexia lodged a sex discrimination complaint with the Human Rights Commission.
Wilson complained the partnership had breached s.17 of the Sex Discrimination Act, which makes it unlawful for partners to discriminate against one of their number on the basis of sex.
She claimed, the partnership had not treated her as it would have treated a man in her position. A male partner, she said, would have been told about the complaints before they were passed on for investigation, and a male would not have been excluded from the office, or put on the chopping block for expulsion.
Along with her complaint, she applied to the Federal Court for an injunction under s.46PP of the Australian Human Rights Commission Act. to stop the partnership holding a meeting to expel her. Under that provision, the court can grant an interim injunction to “maintain the status quo”, while a complaint is still before the commission.
On February 18, Justice Jane Jagot granted an emergency version of this injunction. It then fell to Justice Nicholas to decide whether it should be kept in place until the matter could be resolved. He delivered his judgment on May 24, saying the relevant test had two parts, discussed in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65]. One, whether the applicant had a prima facie case in the main dispute. And two, whether the inconvenience the applicant would suffer if the injunction was not granted outweighed the respondent’s if it was.
Applying this test, Nicholas refused to keep the emergency injunction in place. He doubted the strength of Wilson’s sex discrimination case, finding she was unlikely to prove that she had been treated worse – because she was a woman – than a man in her position. That was the question as formulated in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92.
Nicolas found there was no evidence that any of the actions taken by the firm were motivated by Wilson’s sex. Her brief, Christopher Ward SC, put it this way:
“The facts … are that my client is, on any view of it, a strong female partner in a leadership position. She has been treated entirely differently to male partners who have been facing similar or identical allegations. The only distinguishing feature between them is one of sex.”
The judge was unmoved. The male partners cited did not, in fact, face similar allegations in similar circumstances. HH also thought that the heated emails sent by Wilson and her lawyers were a factor that distinguished her case from others.
He accepted there was some weak evidence and that Britten-Jones and other senior partners wanted her expelled for reasons other than the bullying complaint. Again, there was no sign that her sex had anything to do with it.
On the question of inconvenience, HH also sided with the respondents. He reasoned that the right to expel partners is an important one, and allows a firm to carry on its duties to clients and staff.
He discharged the original emergency injunction, leaving Piper Alderman to conduct their expulsion meeting. Wilson’s complaint is still before the Human Rights Commission and when we last looked she was still there on the law shop’s website.