De Domenico v Marshall

[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…