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Bishop v Takla

Bishop v Takla

Case [2004] FMCA 74 25 February 2004

Sexual Harassment

Unlawful Discrimination

Compensatory Damages

Costs

Human Rights Law

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BISHOP v TAKLA & ORS

[2004] FMCA 74

HUMAN RIGHTS – Sexual harassment in the workplace – where alleged harassment occurred over long period of time –– where applicant settled claim with second and third respondents – where court remains unaware of particulars of settlement until after the matter determined – amount from settlement to then be deducted from damages awarded – claims of inappropriate comments, invasion of space and unwanted touching – where respondent denied that his behaviour towards the applicant had sexual overtones – where incidents resulted in applicant developing post traumatic stress disorder – whether actions complained of constitute sexual harassment within the meaning of s.28A Sex Discrimination Act.

BANKRUPTCY – Where first respondent claimed he was bankrupt – where court granted leave to continue proceedings pursuant to s.58(3)(b) of the Bankruptcy Act.

EVIDENCE – Whether first hand hearsay exception applies – whether representations made by applicant to her boyfriend and mother were “fresh in her memory” when made – whether, if admitted, such evidence would be unfairly prejudicial to respondent – where Court required to consider whose evidence is preferable in the circumstances.

Sex Discrimination Act 1984 ss. 28A, 28B(2)
Bankruptcy Act 1966 (Cth) s.58(3)(b)
Evidence Act 1994 ss.64(3), 135
Federal Magistrates Court Rules 2001 Part 21 Rule 21.02(2)(b), Schedule 1
Midland Credit Limited v Official Trustee in Bankruptcy (1992) 68 FLR 53 Allanson v Midland Credit Limited (1977) 30 FLR 101
Leslie v Graham [2002] FCA 32
Graham v The Queen (1998) 195 CLR 606
R v Adam AKAOdishou (1999) 47 NSWLR 267
Papakosmas v The Queen (1999) 196 CLR 297
R v BD (1997) 94 A CRIM R131
Briginshaw v Briginshaw (1938) 60 CLR 336
Hillroy v Angelo 181 ACR 57
Evans v NCA [2003] FMCA 375

Applicant:

CHARLOTTE LOUISE BISHOP

First Respondent:

SHERIF TAKLA

Second Respondent:

TZENOS CATERING PTY LTD

Third Respondent:

TONY TZENOS

File No:

SZ 1804 of 2003

Delivered on:

25 February 2004

Delivered at:

Sydney

Hearing date:

13 February 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr P Moorhouse

Solicitors for the Applicant:

Legal Aid Commission of New South Wales

For the Respondent:

Respondent in person

ORDERS

The Court declares that the first respondent unlawfully sexually harassed the applicant contrary to s.28B(2) and 28A of the Sex Discrimination Act 1984 in the manner set out in the following Reasons for Judgment.
The Court orders that the first respondent pay to the applicant damages including interest thereon in the sum of $24,386.40.
The first respondent pay the applicant’s costs of the proceedings to be calculated pursuant to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

The Court notes that insofar as the same shall have been considered necessary it grants leave nunc pro tunc to the applicant to continue these proceedings pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1804 of 2003

CHARLOTTE LOUISE BISHOP

Applicant

And

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 Bishop v Takla

Details

AGLC: Bishop v Takla [2004] FMCA 74
Case: [2004] FMCA 74
Decision Date: 25 February 2004

CaseChat Overview and Summary

In the Federal Circuit Court, Bishop initiated proceedings against Takla alleging that the first respondent unlawfully sexually harassed the applicant in breach of the Sex Discrimination Act 1984. The case involved claims of inappropriate conduct and harassment that occurred during their employment relationship. The court was tasked with determining whether the respondent’s actions constituted unlawful sexual harassment and whether the applicant was entitled to damages and other remedies under the Act.

The central legal issues the court needed to resolve were whether the respondent's conduct amounted to unlawful sexual harassment and, if so, whether the applicant was entitled to compensation and other remedies. The court had to examine the specific incidents of alleged harassment, their context, and the impact on the applicant. Additionally, the court needed to consider whether the applicant had standing to bring the proceedings under the relevant legislation, particularly in light of the applicant's personal financial circumstances.

The court found that the respondent's conduct indeed constituted unlawful sexual harassment under sections 28B(2) and 28A of the Sex Discrimination Act 1984. The court detailed the incidents of harassment, noting their unacceptability and the negative impact on the applicant. The respondent's actions were found to be both unwanted and of a sexual nature, fulfilling the criteria for unlawful harassment. The court assessed the evidence thoroughly and concluded that the applicant's claims were substantiated. Consequently, the court ordered the respondent to pay the applicant damages, including interest, and awarded costs to the applicant in accordance with the Federal Magistrates Court Rules. The court also granted leave nunc pro tunc to the applicant to continue the proceedings under the Bankruptcy Act 1966.

Orders

Orders of the court

The Court declares that the first respondent unlawfully sexually harassed the applicant contrary to s.28B(2) and 28A of the Sex Discrimination Act 1984 in the manner set out in the following Reasons for Judgment.

The Court orders that the first respondent pay to the applicant damages including interest thereon in the sum of $24,386.40.

The first respondent pay the applicant’s costs of the proceedings to be calculated pursuant to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

The Court notes that insofar as the same shall have been considered necessary it grants leave nunc pro tunc to the applicant to continue these proceedings pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth).

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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Citations

AGLC Citation

Bishop v Takla [2004] FMCA 74

Most Recent Citation

Cross v Hughes [2006] FMCA 976

Cases citing this decision · 3 of 3 shown

Alexander v Cappello
[2013] FCCA 860 Para 4

…] Wattle v Kirkland & Anor (No 2) [2002] FMCA 135. [26] Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102. [27] at [243]. [28] [2004] FMCA 74. [29] Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584…
Zenkova v Al Fahdawi
[2010] NSWADT 272

…36 Horman v Distribution Group Ltd [2002] FCA 219 Aldridge v Booth [1988] FCA 170 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Bishop v Takla & Ors [2004] FMCA 74 REPRESENTATION: APPLICANT G Winn, solicitor RESPONDENT B Niven of counsel, instructed by Mr H El Husseini ORDERS: 1.The applicant’s complaint of sexu…
Cross v Hughes
[2006] FMCA 976 Para 33

…determinations of the Federal Court and of this Court in respect of awards in sex discrimination cases. So for example, Raphael FM, in the matter of Bishop v Takla & Ors (2004) FMCA 74 considered an award of non-economic damages in the amount of $20,000 was appropriate. That was a case involving sexual harassment of a waitre…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

Evans v National Crime Authority
[2003] FMCA 375 Para 2

…of $16,000 awarded in Leslie v Graham supra , the award of $20,000.00 in Hillroy v Angelo 181 ACR 57 and the award of $54,488.57 made in Evans v NCA [2003] FMCA 375 (although this was not a sexual harassment case). I think the court should be cautious before descending into the minutiae of these claims so as to m…
Horman v Distribution Group Ltd
[2002] FCA 219 Para 1

…In Horman v Distribution Group Ltd [2002] FCA 219 Justice Emmett approved of the following statement concerning the acceptance of evidence in cases such as this. “ 33 Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult tas…
Leslie v Graham
[2002] FCA 32 Para 2

…something having occurred. Evidence of this nature was considered in the context of a sexual harassment claim by Branson J in Leslie v Graham [2002] FCA 32 at [51] – [55]. She also deals with the definition of the word “fresh” which was considered by the High Court in Graham v The Queen (1998) 195 CLR 606. I am…
Papakosmas v The Queen
[1999] HCA 37 Para 2

…ot unfairly prejudicial to a party merely because it tends to damage the case of a party or support the case of an opponent Papakosmas v The Queen (1999) 196 CLR 297 at [91, 98] per McHugh J. In that case His Honour approved of the statement of the New South Wales Court of Criminal Appeal in R v BD (1997) 94 A CRIM R131 that “[…
Regina v Gilbert Adam
[1999] NSWCCA 197 Para 2

…oth to Mrs Bishop and to Mr Weiss were contemporaneous enough to be considered “recent” or “immediate”. In R v Adam AKA Odishou (1999) 47 NSWLR 267 at [281-2] the definition of ‘fresh’ was given further consideration and a wider temporal scope by the New South Wales Court of Criminal Appeal. The difficulty which I fac…
Graham v The Queen
[1998] HCA 61 Para 2

…v Graham [2002] FCA 32 at [51] – [55]. She also deals with the definition of the word “fresh” which was considered by the High Court in Graham v The Queen (1998) 195 CLR 606. I am satisfied that the events which were relayed both to Mrs Bishop and to Mr Weiss were contemporaneous enough to be considered “recent” or “immedia…
Allanson v Midland Credit Ltd
[1977] FCA 66 Para 4

…e now ready for trial, the facts are complex and the issues will be better and more comprehensively dealt with in the context of these proceedings; Allanson v Midland Credit Limited (1977) 30 FLR 101[114-115].…
Briginshaw v Briginshaw
[1938] HCA 36 Para 3

…past Ms Bishop in a rush to get to his post. In these cases there is usually a reference made to proof being required to the standard discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. In Graham supra , Justice Branson took her cue from s.140 Evidence Act which required the court to take into account: “(c) The gravity of t…
Briginshaw v Briginshaw
[1938] HCA 34 Para 3

…h to get to his post. In these cases there is usually a reference made to proof being required to the standard discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. In Graham supra , Justice Branson took her cue from s.140 Evidence Act which required the court to take into account: “(c) The gravity of the matters…

Legislation cited in this decision · 3

Sex Discrimination Act 1984 (Cth)
28A, 28B(2) 3 mentions (from Para 1)
Bankruptcy Act 1966 (Cth)
58(3)(b) 2 mentions (from Para 4)
Federal Magistrates Court Rules 2001 (Cth)
1 mention