Bishop v Takla

Case [2004] FMCA 74


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

  1. 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.

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

  3. 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

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

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

1.

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.

2.

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

3.

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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