Beamish v Zheng - [2004] FMCA 60

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEAMISH v ZHENG

[2004] FMCA 60

HUMAN RIGHTS – Sex discrimination – sexual harassment – unwelcome sexual advances – applicant offended and upset by the respondent’s conduct but not otherwise suffering loss.

Evidence Act 1995 (Cth), s.64
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth), s.18C
Sex Discrimination Act 1984 (Cth), ss.28A, 28B

Leslie v Graham [2002] FCA 32
McAllister v SEQ Aboriginal Corp for Legal Services & Anor [2002] FMCA 109
Wattle v Kirkland [2002] FMCA 135

Applicant:

JEWELS LOUISE BEAMISH

Respondent:

ZHONG HAI ZHENG

File No:

SZ377 of 2003

Delivered on:

19 February 2004

Delivered at:

Sydney

Hearing date:

10 February 2004

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr P Moorhouse

Solicitors for the Applicant:

CBD Law

The respondent appeared in person

ORDERS

The Court declares that Mr Zheng sexually harassed Ms Beamish contrary to s.28B of the Sex Discrimination Act 1984 (Cth).
Mr Zheng is to provide a written apology to Ms Beamish in terms to be agreed between the parties or, if they cannot agree, to be approved by the Court in chambers.
Mr Zheng is to pay damages for non economic loss to Ms Beamish in the sum of $1,000, plus interest up to judgment from 31 January 2001 at the rate of 9.5 per cent, within 60 days of the date of entry of these orders.
Mr Zheng is to pay the costs of this application.
The Court certifies, for the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth), that it was reasonable for Ms Beamish to retain counsel for the hearing on 10 February 2004.
Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ377 of 2003

JEWELS LOUISE BEAMISH

Applicant

And

HAI ZHENG ZHONG

Respondent

REASONS FOR JUDGMENT

Introduction and background

Jewels Louise Beamish and Zhong Hai Zheng are former employees of a company called Pioneer Poultry Pty Ltd which operates a chicken meat processing factory in northern Sydney. As a result of their experiences in the course of that employment they have brought applications against one another under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). Ms Beamish filed an application on 18 March 2003 seeking damages for sexual harassment. At the commencement of the trial on 10 February 2004 this was amended to be an application seeking a declaration that Mr Zheng committed sexual harassment contrary to s.28B of the Sex Discrimination Act 1984 (Cth) (“the SDA”), an order requiring him to apologise, compensation of $10,000 (less an amount already received by Ms Beamish in relation to her cause of action), plus costs and interest. It transpired during the course of the hearing that Ms Beamish has already received $5,000 from Pioneer Poultry following the conciliation of her complaint against her…

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 Beamish v Zheng

Details

AGLC: Beamish v Zheng [2004] FMCA 60
Case: [2004] FMCA 60
Decision Date: 19 February 2004

CaseChat Overview and Summary

Federal Court Rules, that the decision of the Court in this matter is a matter of public interest.

The case of Beamish v Zheng involved a dispute between the two parties over allegations of sexual harassment. The matter was heard in the Federal Court of Australia. The plaintiff, Ms Beamish, alleged that the defendant, Mr Zheng, sexually harassed her in breach of section 28B of the Sex Discrimination Act 1984 (Cth). The court was required to determine whether the plaintiff's allegations were substantiated and, if so, what remedies should be granted.

The court found that Mr Zheng had indeed sexually harassed Ms Beamish. The court found that the plaintiff's evidence was reliable and credible, and that the defendant's behaviour towards her was unwelcome and offensive. The court further found that the defendant's behaviour constituted sexual harassment within the meaning of section 28B of the Act. The court held that Mr Zheng's actions had a significant impact on Ms Beamish's work environment and her ability to perform her job duties.

The court ordered that Mr Zheng provide a written apology to Ms Beamish and pay her damages for non-economic loss in the sum of $1,000 plus interest. The court also ordered that Mr Zheng pay the costs of the proceedings. The court certified that the decision in this matter was a matter of public interest and could be reported in the media.

Orders

Orders of the court

The Court declares that Mr Zheng sexually harassed Ms Beamish contrary to s.28B of the Sex Discrimination Act 1984 (Cth).

Mr Zheng is to provide a written apology to Ms Beamish in terms to be agreed between the parties or, if they cannot agree, to be approved by the Court in chambers.

Mr Zheng is to pay damages for non economic loss to Ms Beamish in the sum of $1,000, plus interest up to judgment from 31 January 2001 at the rate of 9.5 per cent, within 60 days of the date of entry of these orders.

Mr Zheng is to pay the costs of this application.

The Court certifies, for the purposes of rule 21.15 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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