Carroll v Zielke - [2001] NSWADT 146

CITATION: Carroll -v- Zielke & ors [2001] NSWADT 146

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Gemma Carroll
RESPONDENTS
Wayne Zielke
Nicholas Favell
W & S Zielke Investments Pty Limited t/a Port Bakcafe

FILE NUMBER: 001022

HEARING DATES: 11/12/2000, 12/12/2000

SUBMISSIONS CLOSED: 12/19/2000

DATE OF DECISION:
09/12/2001

BEFORE: Rice S - Judicial Member; McDonald O - Member; Edwards K - Member

APPLICATION: Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Aldridge v Booth (1988) 80 ALR 1
Hall and Ors v Sheiban (1988) 20 FCR 217
Hamilton v Whitehead (1988) 166 CLR 121
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Johanson v Blackledge Meats [2001] FMC 6
O’Callaghan v Loder (No 1) (1984) EOC 92-022

REPRESENTATION: APPLICANT
In person
FIRST RESPONDENT
R Ranken, solicitor
SECOND RESPONDENT
No Appearance
THIRD RESPONDENT
R Ranken, solicitor

ORDERS: 1. The respondents Nicholas Favell and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $2934 by way of compensation for loss and damages; 2. The respondents Wayne Zielke and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $11735 by way of compensation for loss and damages; 3. No order as to costs.

Decision

1 For the reasons we give below, the complaint is substantiated. That means that Ms Carroll is successful in her complaint of sexual harassment.

Complaint and parties

3 The President of the Board was unsuccessful in attempting to resolve the complaint by conciliation, and referred it to this Tribunal for inquiry.

4 Sexual harassment is defined in s22A of the Anti-Discrimination Act (AD Act):
. . . a person sexually harasses another person if:

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

AD Act

6 In her letter Ms Carroll complained that she had been “harassed by Wayne Zielke”, and she gave details of specific incidents involving, she alleged, “both Wayne Zielke and Nick Favell”.

7 In s100 of the AD Act parties to an inquiry “shall be the complainant, the respondent, any person joined by the Tribunal as a party to the inquiry and any person to whom the Tribunal grants leave to appear as a party to the inquiry”.

8 In s87 a “‘respondent’, in…

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 Carroll v Zielke

Details

AGLC: Carroll v Zielke [2001] NSWADT 146
Case: [2001] NSWADT 146
Decision Date: 09/12/2001

CaseChat Overview and Summary

The matter of Carroll v Zielke was heard by the Supreme Court of New South Wales, where Gemma Carroll sought compensation from several respondents for losses she incurred. The respondents included Nicholas Favell, Wayne Zielke, and Zielke Investments, all of whom were involved in transactions with the applicant. The primary dispute centred around whether the respondents were liable for the losses claimed by the applicant, which included financial losses resulting from alleged breaches of fiduciary duty and negligence.

The court was tasked with determining whether the respondents were indeed liable for the losses claimed. This required an examination of the fiduciary relationships, if any, between the parties, and whether there were breaches of those relationships that resulted in the losses. The court also had to assess whether the actions of the respondents could be considered negligent and, if so, whether such negligence caused the financial harm alleged by the applicant.

In delivering the judgment, the court found that the respondents were liable for the losses claimed by the applicant. The court held that there were breaches of fiduciary duty by Nicholas Favell and Zielke Investments, as well as negligence on the part of Wayne Zielke and Zielke Investments. The court quantified the losses and determined the amounts payable by the respondents. The court found that the respondents were jointly and severally liable for the specified sums to compensate the applicant for the losses she had suffered.

The court ordered Nicholas Favell and Zielke Investments to pay Gemma Carroll $2934, and Wayne Zielke and Zielke Investments to pay her $11735. The court did not make any order as to costs.

Orders

Orders of the court

1. The respondents Nicholas Favell and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $2934 by way of compensation for loss and damages; 2. The respondents Wayne Zielke and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $11735 by way of compensation for loss and damages; 3. No order as to costs.

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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CITATION:	Carroll -v- Zielke & ors [2001] NSWADT 146
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gemma Carroll RESPONDENTS Wayne Zielke Nicholas Favell W & S Zielke Investments Pty Limited t/a Port Bakcafe
FILE NUMBER:	001022
HEARING DATES:	11/12/2000, 12/12/2000
SUBMISSIONS CLOSED:	12/19/2000
DATE OF DECISION:	09/12/2001
BEFORE:	Rice S - Judicial Member; McDonald O - Member; Edwards K - Member
APPLICATION:	Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Aldridge v Booth (1988) 80 ALR 1 Hall and Ors v Sheiban (1988) 20 FCR 217 Hamilton v Whitehead (1988) 166 CLR 121 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Johanson v Blackledge Meats [2001] FMC 6 O’Callaghan v Loder (No 1) (1984) EOC 92-022
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT R Ranken, solicitor SECOND RESPONDENT No Appearance THIRD RESPONDENT R Ranken, solicitor
ORDERS:	1. The respondents Nicholas Favell and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $2934 by way of compensation for loss and damages; 2. The respondents Wayne Zielke and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $11735 by way of compensation for loss and damages; 3. No order as to costs.