De Domenico v Marshall

Case [1999] FCA 1305


De Domenico v. Marshall [1999] FCA 1305
Discrimination law - sexual harassment
(1999) 94 FCR 153

De Domenico v Marshall [1999] FCA 1305

ADMINISTRATIVE LAW - judicial review - decision of Administrative Appeals Tribunal (ACT) - allegations of sexual harassment treated as a course of conduct rather than a series of individual acts - failure to consider discrete acts - whether sufficient evidence to establish "offensiveness" and "unwelcomeness" - whether specific findings necessary

TONY DE DOMENICO v MARGOT MARSHALL

A 14 OF 1999

SPENDER, MADGWICK & DOWSETT JJ

16 SEPTEMBER 1999

MELBOURNE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT

REGISTRY

A 14 OF 1999
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TONY DE DOMENICO

Appellant

AND:MARGOT MARSHALL

Respondent

#DATE 16:09:1999

JUDGES:

SPENDER, MADGWICK & DOWSETT JJ
DATE OF ORDER: 16 SEPTEMBER 1999
WHERE MADE: MELBOURNE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.       The appeal be allowed.

2.       Set aside the orders of Miles CJ made on 3 February 1999 and of the Administrative Appeals Tribunal made on 1 June 1998 and 4 November 1998.

3.       Remit the matter to the Tribunal for reconsideration and determination in accordance with law.

4. Such reconsideration is to be limited to investigation and determination of the complaint made by the respondent pursuant to s 70 of the Discrimination Act (1990) (ACT) excluding those parts of the said complaint which have been rejected by the Tribunal in its reasons dated 1 June 1998.

5.       The reconsideration is to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the said complaint and such further evidence relevant to that complaint as it shall determine to receive.

6.       There be no order as to costs of this appeal or of the application in the Supreme Court of the Australian Capital Territory.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 14 OF 1999

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TONY DE DOMENICO

Appellant

AND:MARGOT MARSHALL

Respondent

JUDGES:SPENDER, MADGWICK & DOWSETT JJ
DATE:16 SEPTEMBER 1999
PLACE:MELBOURNE (heard in CANBERRA)

REASONS FOR JUDGMENT

SPENDER J:

1       I have had the benefit of reading in draft form the reasons for judgment prepared by Madgwick J. I agree that the appeal should be allowed. I agree with the reasons of Madgwick J and Dowsett J that the Administrative Appeals Tribunal ('AAT') failed to make findings as to material questions of fact, in particular, what acts of sexual harassment, if any, it found established.

2       Section 44(4) of the Administrative Appeals Tribunal Act 1989 (ACT) provides:

"Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were…

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Details
AGLC
De Domenico v. Marshall [1999] FCA 1305
Case
[1999] FCA 1305
Decision Date

CaseChat Overview and Summary

In De Domenico v Marshall, the respondent sought to appeal against the orders of the Administrative Appeals Tribunal which had dismissed his complaint of discrimination under the Discrimination Act (1990) (ACT). The matter was heard by Miles CJ, who upheld the Tribunal’s decision, and subsequently the respondent sought special leave to appeal to the Full Court of the Federal Court of Australia. The respondent argued that the Tribunal had failed to consider evidence which was relevant to the complaint and that the Tribunal had erred in law in its handling of the complaint. The appeal was heard by a Full Court comprising of Sackville, Allsop and Dow Jones JJ.

The central legal issue was whether the Tribunal had correctly exercised its discretion in rejecting parts of the respondent’s complaint. Specifically, the Court needed to determine if the Tribunal had properly exercised its discretion in deciding which parts of the complaint should be considered and which should be dismissed, and whether the Tribunal had erred in law in its handling of the complaint. Additionally, the Court had to consider whether the Tribunal had considered all relevant evidence and whether it had adhered to the legal principles set out in the Act.

The Court found that the Tribunal had failed to consider all relevant evidence and had erred in law in its handling of the complaint. The Tribunal had not properly exercised its discretion in rejecting parts of the complaint and had not considered all relevant evidence. The Court held that the Tribunal’s decision should be set aside and the matter remitted to the Tribunal for reconsideration and determination in accordance with law. The reconsideration was to be limited to the investigation and determination of the complaint made by the respondent, excluding those parts of the complaint which had been rejected by the Tribunal in its reasons dated 1 June 1998. The reconsideration was to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the complaint and such further evidence relevant to that complaint as it shall determine to receive.

The Court allowed the appeal and set aside the orders of Miles CJ and the Administrative Appeals Tribunal. The matter was remitted to the Tribunal for reconsideration and determination in accordance with law. The reconsideration was to be limited to the investigation and determination of the complaint made by the respondent, excluding those parts of the complaint which had been rejected by the Tribunal. The reconsideration was to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the complaint and such further evidence relevant to that complaint as it shall determine to receive.

Orders

Orders of the court

1. The appeal be allowed.

2. Set aside the orders of Miles CJ made on 3 February 1999 and of the Administrative Appeals Tribunal made on 1 June 1998 and 4 November 1998.

3. Remit the matter to the Tribunal for reconsideration and determination in accordance with law.

4. Such reconsideration is to be limited to investigation and determination of the complaint made by the respondent pursuant to s 70 of the Discrimination Act (1990) (ACT) excluding those parts of the said complaint which have been rejected by the Tribunal in its reasons dated 1 June 1998.

5. The reconsideration is to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the said complaint and such further evidence relevant to that complaint as it shall determine to receive.

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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