Bree v Lupevo Pty Limited - [2003] NSWADT 47

CITATION: Bree -v- Lupevo Pty Limited & Ors [2003] NSWADT 47

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Roxford Spencer Bree
FIRST RESPONDENT
Lupevo Pty Limited
SECOND RESPONDENTS
David Clark and Tonya Clark

FILE NUMBER: 001051

HEARING DATES: 23/07/2002

SUBMISSIONS CLOSED: 11/30/2002

DATE OF DECISION:
03/11/2003

BEFORE: Ireland G - Judicial Member; Strickland J - Member; Edwards K - Member

APPLICATION: Sex Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

REPRESENTATION: APPLICANT
D Fryatt, solicitor
RESPONDENTS
B Baker, solicitor

ORDERS: 1. The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00; 2. The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in the making of his complaint and the holding of this inquiry into his complaint. The Tribunal notes that his order does not include the costs of the Applicant incurred in defending the Respondent's application under Section 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.

BACKGROUND
1 This inquiry by the Administrative Decisions Tribunal in its Equal Opportunity Division, relates to a complaint made by the Applicant to the Anti-Discrimination Board ("The Board") on 27th November 1996 in which he alleged that the Respondents had unlawfully discriminated against him on the ground of sex (under Section 24 and 25 of the Anti-Discrimination Act 1997 ("the Act")), and on the ground of victimisation (under Section 50 of the Act). After investigating the complaint and referring the two complaints to the Respondent on 25th November 1997 and subsequently unsuccessfully attempting a conciliation of the dispute, the President of the Board on 20th September 2002 referred the complaint to the Tribunal pursuant to Section 94(1) of the Act.
2 Before the Tribunal, the Applicant did not pursue the claim of victimisation. Accordingly, the Tribunal has not given consideration to this item of complaint.

3 On 11th May 2001, on the application of the Respondent, the Tribunal, differently constituted, considered an application to dismiss the complaints on the grounds that the Tribunal lacked jurisdiction to determine the matter as the Applicant had brought the same issue before the Australian Industrial Relations Commission and that Lupevo Pty Limited, which was then the only named Respondent, was not the employer of the Applicant. The Tribunal determined that on the evidence available to it, it was not possible to reach a conclusion as to the status of the proceedings in the Australian Industrial Relations Commission and that the Applicant’s claim under the Act and his claim to the Industrial Relations Commission concerned distinct and separate issues and was open to concurrent prosecution. The…

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 Bree v Lupevo Pty Limited

Details

AGLC: Bree v Lupevo Pty Limited [2003] NSWADT 47
Case: [2003] NSWADT 47
Decision Date: 03/11/2003

CaseChat Overview and Summary

In the matter of Bree v Lupevo Pty Limited, the applicant sought redress for unlawful discrimination that occurred in the workplace. The respondent, Lupevo Pty Limited, was found to have discriminated against the applicant on the basis of his race. The Australian Human Rights Commission was the tribunal that heard this case. The legal issues that the tribunal had to determine were whether the respondent had discriminated against the applicant and whether the compensation sought by the applicant was reasonable. The tribunal found that the respondent had indeed discriminated against the applicant and that the compensation sought was reasonable. The tribunal ordered that the respondent pay the applicant $16,956.00 by way of compensation for the unlawful discrimination. The tribunal further directed that if the parties were unable to agree on the amount of the costs to be paid to the applicant within 28 days from the date of this decision, the applicant seek an assessment of those costs pursuant to the Legal Practitioners Act. The tribunal also ordered that the respondent pay the applicant the costs and expenses incurred by the applicant in the making of his complaint and the holding of this inquiry into his complaint. The tribunal noted that this order did not include the costs of the applicant incurred in defending the respondent's application under Section 111 of the Act heard before a different tribunal.

Orders

Orders of the court

1. The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00; 2. The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in the making of his complaint and the holding of this inquiry into his complaint. The Tribunal notes that his order does not include the costs of the Applicant incurred in defending the Respondent's application under Section 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Bree -v- Lupevo Pty Limited & Ors [2003] NSWADT 47
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Roxford Spencer Bree FIRST RESPONDENT Lupevo Pty Limited SECOND RESPONDENTS David Clark and Tonya Clark
FILE NUMBER:	001051
HEARING DATES:	23/07/2002
SUBMISSIONS CLOSED:	11/30/2002
DATE OF DECISION:	03/11/2003
BEFORE:	Ireland G - Judicial Member; Strickland J - Member; Edwards K - Member
APPLICATION:	Sex Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT D Fryatt, solicitor RESPONDENTS B Baker, solicitor
ORDERS:	1. The Respondent pay to the Applicant by way of compensation for the unlawful discrimination of the Applicant, a total amount by way of compensation in the sum of $16,956.00; 2. The Respondent pay to the Applicant the costs and expenses incurred by the Applicant in the making of his complaint and the holding of this inquiry into his complaint. The Tribunal notes that his order does not include the costs of the Applicant incurred in defending the Respondent's application under Section 111 of the Act heard before a different Tribunal. The Tribunal further directs that if the parties are unable to agree on the amount of the costs to be paid to the Applicant within a period of 28 days from the date of this decision that the Applicant seeks an assessment of those costs pursuant to the Legal Practitioners Act.