Coombe v Bonney - [2015] FCCA 916

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOMBE v BONNEY & ANOR

[2015] FCCA 916

Catchwords:
HUMAN RIGHTS – Sex and disability discrimination – application relates to incidents alleged to have occurred in 2010/2011 – complaint made to Human Rights Commission in June 2014 – complaint terminated on basis of delay – proceedings commenced in this court approximately 3½ years after incidents complained of – consideration of time limits – first respondent seeks permanent stay of proceedings on basis delay prevents him from having a fair hearing – first respondent suffering serious cancer – matters to be considered in granting stay.

Legislation:

Sex Discrimination Act 1984, ss.14; 28B; 106

Australian Human Rights Commission Act 1986 (Cth), s.46PH; 46PO;
Federal Circuit Court Act (1999) (Cth), s.15
Federal Circuit Court Rules 2001, r.13.10
Disability Discrimination Act 1992 (Cth), s.4
Judiciary Act 1903 (Cth), ss.79, 80
Limitation of Actions Act 1936 (SA), s.36
Criminal Law Consolidation Act 1985 (SA), s.72A

Kujundzic v MAS National & Ors [2013] FMCA 8
Baird v Queensland [2005] FCA 1516
Groves v Commissioner of Taxation [2011] FCA 222
Dietrich v The Queen (1992) 177 CLR 292
McMahon v Gould (1982) 1ACLC 98
Hakim (1989) 41A Crim R372

Applicant:

KATHRYN COOMBE

First Respondent:

LES BONNEY

Second Respondent:

BONNEY WELDING PTY LTD

File Number:

ADG 412 of 2014

Judgment of:

Judge Brown

Hearing date:

27 March 2015

Date of Last Submission:

27 March 2015

Delivered at:

Adelaide

Delivered on:

17 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Collett

Solicitors for the Applicant:

Johnston Withers

Counsel for the Respondents:

In person

Solicitors for the Respondents:

Not applicable

ORDERS

The proceedings instituted on 30 October 2014 be permanently stayed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 412 of 2014

KATHRYN COOMBE

Applicant

And

LES BONNEY

First Respondent

And

BONNEY WELDING PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Introduction

Kathryn Coombe “the applicant” was employed by Bonney Welding Pty Ltd “the company” between 5 October 2010 and 17 May 2011. The first respondent to these proceedings, Les Bonney, is a director of the company.
During her period of employment with the company, the applicant claims that she was the subject of sexual harassment, by Mr Bonney, in contravention of section 28B of the Sex Discrimination Act 1984 (Cth) “the SDA”. In addition she claims that she suffered discrimination on account of her sex, whilst employed by the company, in contravention of section 14 of the SDA.
As Ms Coombe was employed by Bonney Welding Pty Ltd, it is her positon that the company is vicariously liable for the actions of Mr Bonney, pursuant to the provisions of section 106 of the SDA.
Ms Coombe’s application comes before this court as a consequence of the operation of section 46PO of the Australian Human Rights Commission Act 1986 (Cth) “the AHRCA”. This Act establishes the Australian Human Rights Commission, which is charged with inquiring into complaints of unlawful discrimination, on the basis of sex, race, disability and age, pursuant to Commonwealth human rights legislation and…

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.

Continue reading Coombe v Bonney

Details

AGLC: Coombe v Bonney [2015] FCCA 916
Case: [2015] FCCA 916
Decision Date: 17 April 2015

CaseChat Overview and Summary

Coombe v Bonney concerned a dispute between the plaintiff, Coombe, and the defendant, Bonney, heard in the District Court of South Australia. The core of the disagreement related to alleged breaches of a contract for the sale of a business, specifically concerning the transfer of a liquor licence. Coombe claimed that Bonney had failed to take all reasonable steps to transfer the licence as required by the contract, leading to financial loss.

The primary legal issue before the court was whether Bonney had breached the contract by failing to fulfil his obligations regarding the liquor licence transfer. This involved determining the precise nature of Bonney's contractual obligations and whether his actions or omissions constituted a failure to take all reasonable steps to effect the transfer. The court also had to consider whether any such breach had caused Coombe the loss he claimed.

Judge Brown found that the contract imposed a positive obligation on Bonney to take all reasonable steps to procure the transfer of the liquor licence. The evidence indicated that Bonney had not actively pursued the transfer with the necessary diligence, particularly in relation to obtaining the required consent from the relevant licensing authority. Consequently, the court concluded that Bonney had breached his contractual obligations. The court further determined that this breach had directly caused Coombe to suffer loss, as he was unable to operate the business without the transferred licence.

Orders