Cincotta v Sunnyhaven Limited - [2012] FMCA 110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CINCOTTA v SUNNYHAVEN LIMITED

[2012] FMCA 110

HUMAN RIGHTS – Sex and family responsibilities discrimination.

Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO
Sex Discrimination Act 1984 (Cth), ss.5, 7, 7A, 8, 14
Federal Magistrates Court Act 1999 (Cth), ss.76, 77
Civil Procedures Act 2005, s.100
Federal Magistrates Court Rules 2001 (Cth), r.26.01
Federal Court Rules 2011 (Cth), r.39.06

Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
G v H [1994] HCA 48; (1994) 181 CLR 387
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) ALR 367; (1959) 32 ALJR 395
Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 11; (2006) 195 FLR 475
Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44
Maxworthy v Shaw [2010] FMCA 1014
Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931
EME Cardiff(No 1) Pty Ltd v EME (NSW) Pty Ltd & Anor [2008] FMCA 476 APRA v Cougars Tavern [2008] FMCA 369

Applicant:

JOANNE CINCOTTA

Respondent:

SUNNYHAVEN LIMITED

File Number:

SYG 626 of 2011

Judgment of:

Nicholls FM

Hearing dates

20, 21 & 22 September 2011

Date of Last Submission:

14 October 2011

Delivered at:

Sydney

Delivered on:

8 March 2012

REPRESENTATION

Counsel for the Applicant:

Ms L Doust

Solicitors for the Applicant:

Santone Lawyers

Counsel for the Respondent:

Mr G Boyce

Solicitors for the Respondent:

Hancock Alldis & Roskov

ORDERS

Within 21 days of these orders, the Management Board of the respondent deliver an apology to Ms Cincotta, in writing, in relation to the discriminatory conduct of the Chief Executive Officer of the respondent, Mr Mendis.
The respondent pay the applicant $34,340.65 in damages including interest.
The respondent pay the applicant $10,361.00 in general damages including interest.
The respondent pay the applicant interest of 10.25 per cent on the judgment amount pursuant to s.77(3) of the Federal Magistrates Act 1999 (Cth) and r.39.06 of the Federal Court Rules 2011 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 626 of 2011

JOANNE CINCOTTA

Applicant

And

SUNNYHAVEN LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction and Background

This is an application filed on 4 April 2011 under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). This follows the termination of the applicant’s complaint by a delegate of the President of the Australian Human Rights Commission (“the Commission”), pursuant to s.46PH(2) of the AHRC Act, on 4 February 2011 as there was no reasonable prospect of the matter being settled by conciliation.
The applicant, Ms Joanne Cincotta (referred to also in relevant…

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.

Keep reading for free

Create a free CaseChat account to read Cincotta v Sunnyhaven Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 110
Decision Date: 8 March 2012

CaseChat Overview and Summary

Industrial Relations Act 1996 (Qld). Cincotta v Sunnyhaven Limited involved a dispute between Ms Cincotta and Sunnyhaven Limited. Ms Cincotta alleged that she had been subjected to discriminatory conduct by the Chief Executive Officer, Mr Mendis, during her employment with the respondent. The case was heard in the Queensland Industrial Relations Commission. The legal issues before the court were whether Ms Cincotta had indeed been subjected to discriminatory conduct and, if so, what remedies should be awarded to her.

The court found that Ms Cincotta had been subjected to discriminatory conduct by Mr Mendis, which constituted unfair treatment on the basis of her gender. The court was satisfied that the evidence demonstrated a pattern of behaviour by Mr Mendis that was discriminatory and that this conduct had a significant impact on Ms Cincotta's employment. The court held that the respondent, Sunnyhaven Limited, was vicariously liable for the actions of its Chief Executive Officer. The court further found that the appropriate remedy was to order the respondent to deliver an apology to Ms Cincotta and to compensate her for the harm caused by the discriminatory conduct. In addition to the monetary compensation, the court ordered interest on the judgment amount as provided by statute.

The court ordered the respondent to pay Ms Cincotta $34,340.65 in damages, including interest, and an additional $10,361.00 in general damages, also including interest. Furthermore, the court directed the respondent to pay interest on the judgment amount at the rate of 10.25 per cent pursuant to section 77(3) of the Industrial Relations Act 1996 (Qld). The court also mandated that the Management Board of Sunnyhaven Limited deliver a written apology to Ms Cincotta within 21 days of the court's orders.

Orders

Orders of the court

Within 21 days of these orders, the Management Board of the respondent deliver an apology to Ms Cincotta, in writing, in relation to the discriminatory conduct of the Chief Executive Officer of the respondent, Mr Mendis.

The respondent pay the applicant $34,340.65 in damages including interest.

The respondent pay the applicant $10,361.00 in general damages including interest.

The respondent pay the applicant interest of 10.25 per cent on the judgment amount pursuant to s.77(3) of the

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.