Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD)

Appeal Panel

CITATION:	Cleary Bros (Bombo) Pty Ltd -v- Cvetkovski (EOD) [2001] NSWADTAP 10
PARTIES:	APPLICANT Cleary Bros (Bombo) Pty Ltd RESPONDENT Lou Cvetkovski
FILE NUMBER:	999020
HEARING DATES:	22/06/00
SUBMISSIONS CLOSED:	06/22/2000
DATE OF DECISION:	05/03/2001
DECISION UNDER APPEAL:	Cvetkovski -v- Clearly Bros (Bombo) Pty Ltd
BEFORE:	Latham M - DCJ (Deputy President); Rice S - Judicial Member; Strickland J - Member
CATCHWORDS:	costs - leave to appeal out of time - Race Discrimination - in work - Victimisation
MATTER FOR DECISION:	Principal Matter and Costs Order
FILE NUMBER UNDER APPEAL:	238 of 1996
DATE OF DECISION UNDER APPEAL:	05/26/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Opera House Limited v Carr [1999] NSWADTAP 6 Gallo v Dawson (1990) 93 ALR 479 Langley v Niland (1981) 2 NSWLR 104 Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSLWR 247 Kiama Constructions Pty Ltd v Davey (1986) 40 NSWLR 639 Maynard v Dabinett [1999] NSWCA 296 Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658 Jones v Dunkel (1959) 101 CLR 298 Gallagher v NSW Police Service [1998] NSWEOT Penfold v Penfold (1980) 144 CLR 311 Australian Postal Commissioner v Dao and Anor (No 2) (1986) 6 NSWLR 497 House v R (1936) 55 CLR 499 Kennedy v Maher & Holmes Advertising Pty Limited a decision given on 4 June 1998 (unreported)
REPRESENTATION:	APPELLANT C Ronalds, barrister RESPONDENT A Healey, barrister
ORDERS:	1. The appeal is allowed to have been made within the time it was made, which date was 28 days after the costs decision of 31 August 1999.; 2. The award of damages for economic loss ($32,651.91) of 26 May 1999 is set aside.; 3. The order of the Tribunal of 31 August 1999 pursuant to section 114 (2) of the Anti-Discrimination Act is set aside.; 4.The following order is made in substitution: ; Each party to the inquiry shall pay their own costs of the inquiry.

REASONS FOR DECISION

1 This appeal arises out of a decision of the Tribunal which was given in two parts, the first as to the merits of the complaints, which was delivered on 26 May 1999, the second as to the application for costs by the successful complainant (the respondent to this appeal), which was delivered on 31 August 1999. The complaints which were upheld were one of discrimination on the grounds of the complainant’s race, and the race of an associate, unlawful discrimination on the grounds of an imputed disability and one of victimisation, all in the course of Mr Cvetkovski’s employment by the appellant at its Albion Park Rail concrete plant. The hearing took six (6) days, during which time a significant amount of evidence was put before the Tribunal by both parties.

2 Although five of the six grounds of appeal set out in the Notice of Appeal were pressed before the Panel, they essentially resolved themselves into three principal…