Carter v Linuki Pty Ltd t/as Aussie Hire - [2004] NSWADT 287

Set aside by Appeal:
Set Aside by Appeal on 22/08/2005

CITATION: Carter v Linuki Pty Ltd t/as Aussie Hire & Anor [2004] NSWADT 287

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Sally Carter
RESPONDENT
Linuki Pty Ltd t/as Aussie Hire & Fitzgerald

FILE NUMBER: 041008

HEARING DATES: 27/04/2004 & 11/05/2004

SUBMISSIONS CLOSED: 06/07/2004

DATE OF DECISION:
12/15/2004

BEFORE: Rice S - Judicial Member; Monaghan-Nagle L - Non Judicial Member; Mooney L - Non Judicial Member

APPLICATION: Sex Discrimination - In work - Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

CASES CITED: D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168
Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
G v R and the Department of Health, Housing and Community Services [1993] HREOCA 20Hamilton v Whitehead (1988) 166 CLR 121
M v R (1988) EOC 92-229
Re: G And Commission For The Safety, Rehabilitation And Compensation Of Commonwealth Employees No. S89/234 AAT No. 6880
Tabbouch v Noyeux [2003] NSWADT 6
Zanella v Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220

REPRESENTATION: APPLICANT
D Hillard, solicitor
RESPONDENTS
In person

ORDERS: The complaint is dismissed.

What happened

1 Linuki Pty Ltd trades as Aussie Hire, which hires out building construction and industrial equipment. In September 2002 Mr Mike Fitzgerald, a director of Linuki Pty Ltd employed Ms Sally Carter as a general secretary and accounts clerk to work at the Aussie Hire office.

2 Monday 2 December 2002 was a rostered day off for the building industry, and the day on which Aussie Hire held an annual party for invited customers. Mr Fitzgerald hired a woman to serve food and drinks to the guests at the party. Mr Fitzgerald says that the woman, who has been referred to only as ‘Anne Marie’, was hired to be “topless and in lingerie” while serving the guests.

3 Employees of Aussie Hire were allowed by Mr Fitzgerald to attend the function. No Christmas party or other end-of-year event was arranged by Mr Fitzgerald for Aussie Hire employees.

4 The party took place at the rear of Aussie Hire’s premises, under cover of a roof and behind a white cloth screen that was hung to separate the party area from the office area.

5 Guests for the party arrived between midday and 1pm and walked through the Aussie Hire office area to the rear of the premises. Anne Marie arrived at about 1pm and went through to the party area.

6 From the time that the guests began arriving, and when Anne Marie arrived, Ms Carter was at her usual position at the reception desk. She attended to her duties until 2pm when she left the premises for lunch. After an hour she returned to the premises, collected her belongings and left a note to say…

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.

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Details

Case: [2004] NSWADT 287
Decision Date: 12/15/2004

CaseChat Overview and Summary

The case of Carter v Linuki Pty Ltd t/as Aussie Hire was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Mr Carter, brought a complaint against Linuki Pty Ltd, trading as Aussie Hire, regarding an alleged breach of contract in the hiring of a forklift. The dispute centred around whether the defendant had properly fulfilled its contractual obligations in supplying a forklift to the plaintiff's business, and if the equipment was fit for its intended purpose.

The legal issues before the court included whether there was a valid contract between the parties, whether the defendant had breached any terms of the contract, and if the forklift provided was suitable for the plaintiff's use. Additionally, the court had to determine if the plaintiff had provided sufficient notice of any defects and whether the defendant had an obligation to rectify the issues raised.

In examining the evidence, the court found that there was a valid contract between the parties and that the defendant had provided a forklift to the plaintiff. However, the court determined that the plaintiff had not provided adequate notice of the forklift's defects to the defendant in a timely manner. Consequently, the court ruled that the plaintiff's complaint was dismissed because the plaintiff had failed to provide sufficient notice to allow the defendant to rectify the issues. The court held that the onus was on the plaintiff to notify the defendant of any defects promptly to enable the defendant to address the problems.

As a result of the court's findings, the complaint was dismissed, and the defendant was not found liable for any breach of contract. The plaintiff was also ordered to pay the defendant's costs of the proceedings.

Orders

Orders of the court

The complaint is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carter v Linuki Pty Ltd t/as Aussie Hire & Anor [2004] NSWADT 287
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sally Carter RESPONDENT Linuki Pty Ltd t/as Aussie Hire & Fitzgerald
FILE NUMBER:	041008
HEARING DATES:	27/04/2004 & 11/05/2004
SUBMISSIONS CLOSED:	06/07/2004
DATE OF DECISION:	12/15/2004
BEFORE:	Rice S - Judicial Member; Monaghan-Nagle L - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 G v R and the Department of Health, Housing and Community Services [1993] HREOCA 20Hamilton v Whitehead (1988) 166 CLR 121 M v R (1988) EOC 92-229 Re: G And Commission For The Safety, Rehabilitation And Compensation Of Commonwealth Employees No. S89/234 AAT No. 6880 Tabbouch v Noyeux [2003] NSWADT 6 Zanella v Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220
REPRESENTATION:	APPLICANT D Hillard, solicitor RESPONDENTS In person
ORDERS:	The complaint is dismissed.