ABC Developmental Learning Centres v Wallace - [2007] HCATrans 812

[2007] HCATrans 812

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M81 of 2007

B e t w e e n -
ABC DEVELOPMENTAL LEARNING CENTRES PTY LTD
Applicant
and
JOANNE WALLACE
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 12.40 PM

MR W.R. RAY, QC: If the Court pleases, I appear on behalf of the applicant with my learned junior, MR R.W. TAYLOR. (instructed by Dibbs Abbott Stillman Lawyers)

MR P.G. PRIEST, QC: If the Court pleases. I appear with my learned friend, MR A.G. BURNS, for the respondent. (instructed by Victorian Government Solicitor)

KIRBY J: Yes, Mr Ray.

MR RAY: Your Honours, this is an application for special leave to appeal a unanimous decision of the Victorian Court of Appeal. The matters raised ‑ ‑ ‑

KIRBY J: You have not a run on the board yet, have you? The magistrate was against you, Justice Bell was against you and then the Full Court of the Court of Appeal was against you.

MR RAY: Which is why this Court exists from time to time, your Honour, to right the wrongs of preceding courts.

KIRBY J: That is true.

HAYNE J: Why do we ever get to any of these interesting questions of attribution, of responsibility to corporations in a statute which says a company shall ensure a result, that result was not ensured, end of question, is it not, Mr Ray?

MR RAY: With respect, your Honour, we would submit no because were that to be so, the term “adequate” would have no work to do, particularly with, for example, argued in analogy with the other terms and qualification elsewhere in the Act such as “reasonable” and elsewhere in other Acts such as “reasonably practicable”.

HAYNE J: But that is an argument about the content of the result that is to be ensured. The result that is to be ensured is adequate supervision. You have a junior going over the fence. Leave aside where that leaves the state of evidence when that little piece of evidence hits the table, but the corporation has got to ensure a result. Why do we get into questions of attribution of responsibility ever?

MR RAY: Because, your Honour, here it is not an outcome‑based offence. In other words, there could have been a breach in these circumstances without young Mr Varga departing over the fence. There could well have been a failure to provide adequate supervision in circumstances where all other matters were complied with. What is said here is that “adequate”, for example, varies with a range of the circumstances, the nature of the child, the knowledge of other children within the premises, proximity of other external hazards, the presence of other risks both within the yard and external to the yard. If that is what adequacy refers to, then quite clearly,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABC Developmental Learning Centres v Wallace

Details

AGLC: ABC Developmental Learning Centres v Wallace [2007] HCATrans 812
Case: [2007] HCATrans 812
Decision Date

CaseChat Overview and Summary

ABC Developmental Learning Centres Pty Ltd (the applicant) sought special leave to appeal from a decision of the Full Federal Court of Australia, which had dismissed its appeal from a judgment of a single judge of that court. The dispute concerned the applicant's liability for alleged contraventions of the *Sex Discrimination Act 1984* (Cth) (the Act) by its employees, who were alleged to have sexually harassed the respondent, Ms Wallace, during her employment.

The primary legal issue before the Full Federal Court, and subsequently before the High Court on the special leave application, was whether the applicant could rely on the defence provided by section 109 of the Act. This defence is available if the employer proves that they took all reasonable steps to prevent the conduct constituting the contravention. The Full Federal Court had found that the applicant had failed to establish this defence.

The Full Federal Court's reasoning focused on the adequacy of the applicant's policies and training in preventing sexual harassment. It held that the mere existence of policies was insufficient; the employer must demonstrate that these policies were effectively implemented and that employees were adequately trained to understand and comply with them. The court considered the specific circumstances of the harassment and found that the applicant's actions, or lack thereof, did not meet the standard of "all reasonable steps." The High Court ultimately refused special leave to appeal, finding no error of law in the Full Federal Court's determination.

Orders