Elizabeth Jadwiga Absolon v NSW Technical and Further Education Commission & Anor
JUDGMENT OF:
Powell JA at 1; Fitzgerald JA at 88; Sheppard AJA at 151
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S) :
30003/97
LOWER COURT JUDICIAL OFFICER:
Simpson J
COUNSEL:
B R Rayment QC/ J B Bishop/P M Lane (Appellant) A R Moses (Respondent)
SOLICITORS:
W J Whitting (Appellant) I V Knight Crown Solicitor (Respondent)
CATCHWORDS:
Adequacy of reasons; Equal Opportunity Tribunal; discrimination on grounds of sex; discrimination on grounds of previous complaint; victimisation; specialist body; exercise of jurisdiction; whether error of law; no defect manifest on record; adequacy of reasons; whether failure to take material considerations into account.
DECISION:
Appeal dismissed with costs.
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40367/97 EOT 23/91
POWELL JA FITZGERALD JA SHEPPARD AJA
Monday, 30 August 1999
Elizabeth Jadwiga ABSOLON v NEW SOUTH WALES TECHNICAL & FURTHER EDUCATION COMMISSION & ANOR
JUDGMENT
1 POWELL JA: I have read, in draft, the Judgment which has been prepared by Fitzgerald JA. I regret, however, that I cannot share his Honour’s conclusions that the Equal Opportunity Tribunal (“the Tribunal”) erred in law when dealing with complaints 11, 19 and 21. 2 Although, in his Judgment, Fitzgerald JA has provided some of the background which led to this appeal, it is necessary, if I am to explain the reasons which have led me to differ from his Honour, that I provide a more extended record of the background facts. 3 The Appellant, who, at the time of lodging her complaint with the President of the Anti-Discrimination Board (“the Board”) in September 1989, appears to have been about 43 years of age, commenced employment with the Department of Technical Education, as it was then known, as a teacher in shorthand and typewriting at the beginning of 1967. Thereafter, the Appellant progressed through various positions with the Department and, later, with the Respondent which came to replace it, until January 1980 when she was appointed Principal Grade III at Campbelltown TAFE College, a position which she held until April 1986. Among the positions which the Appellant held during that period was that of Principal Grade IV at Mudgee Technical College, a position which she held for about 12 months. It was while she was at Mudgee that the Appellant met Mr. Michael Ryan, another employee of the Respondent who, at the time of the Appellant’s lodging her complaint to the President of the Board, was employed by the Respondent as Administrative Officer (Colleges and Schools). Mr. Ryan’s place in this history can be seen from the terms of Complaints 1-5 with which the Tribunal was concerned to deal - the 21 complaints with which the Tribunal was ultimately concerned to deal are set out in the Schedule to this Judgment. 4 In January 1986 the position of Principal of…
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.
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Details
AGLC
Absolon v NSW TAFE [1999] NSWCA 311
Case
[1999] NSWCA 311
Decision Date
CaseChat Overview and Summary
The applicant, Absolon, appealed to the Supreme Court of New South Wales (Court of Appeal) against a decision of the Equal Opportunity Tribunal. The dispute concerned allegations of discrimination on the grounds of sex and victimisation, arising from a previous complaint made by the applicant.
The primary legal issues before the Court of Appeal were whether the Tribunal had erred in law by providing inadequate reasons for its decision, and whether the Tribunal had failed to take into account material considerations when determining the applicant's claims of sex discrimination and victimisation. The applicant contended that the Tribunal's reasons were insufficient to demonstrate that it had properly considered all relevant evidence and legal arguments.
The Court of Appeal found no error of law in the Tribunal's decision. It held that the reasons provided by the Tribunal, while perhaps not as detailed as the applicant might have wished, were sufficient to indicate the basis of its findings and that no defect was manifest on the record. The Court concluded that the Tribunal had adequately exercised its jurisdiction and had not failed to consider material considerations.
The appeal was dismissed, and the applicant was ordered to pay the costs of the appeal.