Appeal Panel
CITATION: Cleary Bros (Bombo) Pty Ltd -v- Cvetkovski (EOD) [2001] NSWADTAP 10 PARTIES: APPLICANT
Cleary Bros (Bombo) Pty Ltd
RESPONDENT
Lou CvetkovskiFILE NUMBER: 999020 HEARING DATES: 22/06/00 SUBMISSIONS CLOSED: 06/22/2000 DATE OF DECISION:
05/03/2001DECISION UNDER APPEAL:
Cvetkovski -v- Clearly Bros (Bombo) Pty LtdBEFORE: 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 1977CASES 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, barristerORDERS: 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…
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- Case
- [2001] NSWADTAP 10
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included whether the plaintiff was indeed subjected to race discrimination and victimisation in the workplace, and if so, whether the damages awarded to the plaintiff were justified. The court also had to consider whether the plaintiff's leave to appeal out of time was valid and whether the order for the defendant to pay the plaintiff's costs was appropriate.
The court found that the plaintiff was subjected to race discrimination and victimisation in the workplace, but the damages awarded were excessive. The court allowed the appeal to have been made within the time it was made, which was 28 days after the costs decision of 31 August 1999. The award of damages for economic loss was set aside, and the order of the Tribunal of 31 August 1999 was also set aside. Instead, the court ordered that each party to the inquiry shall pay their own costs of the inquiry.
In summary, the court found that the plaintiff was subjected to race discrimination and victimisation in the workplace, but the damages awarded were excessive. The court allowed the appeal to have been made within the time it was made, and set aside the award of damages and the order for the defendant to pay the plaintiff's costs. Each party to the inquiry shall pay their own costs of the inquiry.
Orders
Orders of the court
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.
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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