Chand v RailCorp

[2011] NSWCA 79

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chand v RailCorp [2011] NSWCA 79

Hearing dates:

22 February 2011

Decision date:

08 April 2011

Before:

Hodgson JA at 1; Campbell JA at 90; Sackville AJA at 91

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - Complaints of sexual harassment and victimisation - Complaints dismissed by Administrative Decisions Tribunal - Appeal to appeal panel - Appeal extended to merits - Respondent permitted to file notice of contention out of time - Appeal dismissed - Whether Appeal Panel erred by reconsidering a decision - Res judicata and issue estoppel - Whether Appeal Panel otherwise erred or denied procedural fairness.

Legislation Cited:

Administrative Decisions Tribunal Act 1997 ss.73, 81, 83, 113 - 115, 119, 120
Anti-Discrimination Act 1977 ss.22, 50, 103

Cases Cited:

Ainslie v Ainslie (1927) 39 CLR 381
Blair v Curran (1939) 62 CLR 464
Chand v Rail Corporation of NSW (No 3) [2010] NSWADTAP 11
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Chand v Rail Corporation of NSW (EOD) [2007] NSWADTAP 54
Chand v State Rail Authority [2007] NSWADTAP 90
Commonwealth v Sciacca (1988) 17 FCR 476
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Wiest v DPP (1988) 23 FCR 472
Zhang v Blinds Pty Ltd [2008] NSWADTAP 24

Category:

Principal judgment

Parties:

Bimla CHAND (appellant)
RAILCORP OF NEW SOUTH WALES (first respondent)
Jan PLICHTA (second respondent)
John HINIEN (third respondent)
Peter DEMPSEY (fourth respondent)

Representation:

Counsel:
In Person (appellant)
K NOMCHONG (first respondent)
Solicitors:
In Person (appellant)
Clayton Utz (first respondent)

File Number(s):

CA 2009/298394

 Decision under appeal 

Citation:

Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54;
Chand v Rail Corporation of New South Wales (No 2) [2009] NSWADTAP 27

Before:

Magistrate N Hennessy Deputy President, M Smyth Judicial Member and L Mooney Non-judicial Member

File Number(s):

079026

Judgment

1. HODGSON JA: In 2005, complaints of sexual harassment and discrimination brought by the appellant against the first respondent (RailCorp, then called State Rail Authority) were referred to the Administrative Decisions Tribunal (the Tribunal). The appellant's claims in the Tribunal were formalised in Points of Claim dated 13 January 2006, which alleged sexual harassment and victimisation.

1. On 17 April 2007, the Tribunal (constituted by G R Ireland, Judicial Member, and L Nemeth De Bikal and N Hiffernan, Non-judicial Members) made the following orders:

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

2. That four of…