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Bartolo v Doutta Galla Aged Services Ltd

Bartolo v Doutta Galla Aged Services Ltd

Case [2014] FCCA 1517 15 July 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTOLO v DOUTTA GALLA AGED SERVICES LTD

[2014] FCCA 1517

Catchwords:
INDUSTRIAL LAW – Application alleging contraventions of s.340 of the
Fair Work Act 2009 – Application in a Case seeking discovery of certain documents – claim for legal professional privilege – whether report to Respondent’s Board privileged – whether privilege waived by the Respondent.

Legislation:

Evidence Act 1995 (Cth), Part 3.10, Division 1, ss.117, 118, 122

Fair Work Act 2009 (Cth), ss.340, 342, 361

Attorney General (NT) v Maurice (1986) 161 CLR 475
Australian Wheat Board Ltd v Cole and Another (No.5) (2006) 155 FCR 30
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Brunswick Hill Apartments Pty Ltd v CGU Insurance Ltd [2010] VSC 532
Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VCSA 59
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499
Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224
Grant v Downs (1976) 135 CLR 674
Idoport Pty Ltd (in liq) (recs apptd), Re; National Australia Bank Ltd v Sheahan [2012] NSWSC 58
Liquorland (Australia) Pty Ltd v Anghie [2003] 7 VR 27
Mann v Carnell (1999) 201 CLR 1
Perpetual Trustees (W.A.) Ltd v Equuscorp Pty Ltd [1999] FCA 925
Powercor Australia Ltd v Perry (2011) 33 VR 548
Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47
Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 156 ALR 634
Waterford v Commonwealth (1987) 163 CLR 54

Stephen Odgers, Uniform Evidence Law, (10^th ed, 2012)

Applicant:

JOHN BARTOLO

Respondent:

DOUTTA GALLA AGED SERVICES LTD

File Number:

MLG 513 of 2013

Judgment of:

Judge Whelan

Hearing date:

8 July 2014

Date of Last Submission:

8 July 2014

Delivered at:

Melbourne

Delivered on:

15 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr J Wilkinson

Solicitors for the Applicant:

Nowicki Carbone

Counsel for the Respondent:

Mr N Harrington

Solicitors for the Respondent:

Colin Biggers & Paisley

ORDERS

THE COURT DECLARES THAT:

Pursuant to s.45(1) of the Federal Circuit Court of Australia
Act 1999 (Cth) that it is appropriate to allow for discovery in this case.

THE COURT ORDERS THAT:

Pursuant to Rule 14.02(2) of the Federal Circuit Court Rules 2001 (Cth) the Respondent produce to the Applicant the (Interim) Report presented to the Respondent Board by Aitken Partners on 24 September 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 513 of 2013

JOHN BARTOLO

Applicant

And

DOUTTA GALLA AGED SERVICES LTD

Respondent

REASONS FOR JUDGMENT

This is an Application in a Case[1] in which the Applicant,

MR JOHN BARTOLO (“the Applicant”), seeks certain orders with respect to disclosure and discovery concerning the involvement of AITKEN PARTNERS (“Aitken Partners”) in an investigation of what is referred to as “the 16 August 2012 email”, [2] and/or in the termination of the Applicant’s employment with…

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 Bartolo v Doutta Galla Aged Services Ltd

Details

AGLC: Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517
Case: [2014] FCCA 1517
Decision Date: 15 July 2014

CaseChat Overview and Summary

In the County Court of Victoria, Ms. Bartolo (the applicant) brought proceedings against Doutta Galla Aged Services Ltd (the respondent) alleging unlawful discrimination on the ground of age. The applicant claimed that the respondent's decision to terminate her employment was based on her age, contrary to the provisions of the *Equal Opportunity Act 2010* (Vic). The respondent denied that age was a factor in the decision to terminate the applicant's employment, asserting that the termination was due to genuine operational requirements and performance issues.

The central legal issue before the Court was whether the respondent had unlawfully discriminated against the applicant on the ground of age when it terminated her employment. This required the Court to determine if age was a substantial and operative cause of the termination, and if so, whether any defence was available to the respondent. The Court also considered the respondent's asserted reasons for termination, namely operational requirements and performance, and whether these were legitimate and non-discriminatory justifications.

Judge Whelan found that the applicant had established a prima facie case of age discrimination, noting that the applicant was a mature-aged employee and that the termination occurred shortly after a change in management and a review of staffing. The Court considered the evidence presented by both parties, including internal communications and performance reviews. Ultimately, the Court concluded that age was a substantial and operative cause of the termination of Ms. Bartolo's employment. The respondent failed to establish any defence, such as the termination being based on a genuine occupational requirement or that the decision was not based on discriminatory grounds.

The Court ordered that the respondent pay the applicant damages for the loss suffered as a result of the unlawful discrimination.

Orders