Dunne v Astor Pty Ltd

[1999] FCA 1716

FEDERAL COURT OF AUSTRALIA

Dunne v Astor Pty Ltd [1999] FCA 1716

ANGELA DUNNE v THE ASTOR PTY LIMITED AND WALLY PATTERSON
N 634 OF 1999

DRUMMOND, MATHEWS AND MANSFIELD JJ
26 NOVEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 634 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANGELA DUNNE
Appellant

AND:

THE ASTOR PTY LIMITED
First Respondent

WALLY PATTERSON
Second Respondent

JUDGE:	DRUMMOND, MATHEWS AND MANSFIELD JJ
DATE OF ORDER:	26 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 634 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANGELA DUNNE
Appellant

AND:

THE ASTOR PTY LIMITED
First Respondent

WALLY PATTERSON
Second Respondent

JUDGE:	DRUMMOND, MATHEWS AND MANSFIELD JJ
DATE:	26 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. DRUMMOND J:  This is an appeal by Mrs Dunne against the order of Einfeld J dismissing her application against the Astor Pty Ltd and its secretary, Mr Patterson.  In the  affidavit supporting her application, Mrs Dunne identifies the subject matter of her complaint against the respondents as discrimination by them against her on the ground of her sex and her marital status.

2. The material before the Court shows that, for some years, her husband was the caretaker of the apartments in The Astor building in Macquarie Street, Sydney.  The owners of those apartments appear to be the shareholders in the respondent company.  As caretaker, Mr Dunne had a residence within the building in which he, Mrs Dunne and their child lived.  Mr Dunne was very much older than his wife.  He died on 28 May 1998, the certificate of death giving his age as 74 years.

3. Although it was only Mr Dunne who was employed as caretaker, Mrs Dunne apparently assisted him in performing his duties without receiving any payment for herself from the respondent company.

4. In early 1996, the Board of the company decided to replace Mr Dunne with a younger person.  This decision led to controversy among the company’s shareholders, some of whom supported the retention of Mr Dunne.  Ultimately, however, it appears Mr Dunne’s employment (and thus his right to reside in the caretaker’s residence) was terminated.

5. Material put before the Court by Mrs Dunne suggests that in September 1997 Mr Dunne brought proceedings in the New South Wales Court against the respondent company for wrongful dismissal and that he was reinstated in his employment in early 1998.  However, the respondent company then employed two part-time workers to share his duties.  It also appears that at some later time Mr Dunne did cease to work for the respondent company and he, Mrs Dunne and their child moved out of The Astor building.

6. Mrs Dunne’s complaint against the respondents is that the decision to employ other caretakers involved discrimination against Mrs Dunne on the ground of her sex and on the ground of her marital status:  she refers to the assistance she gave her husband while he was caretaker in performing his duties, to a discussion with Mr Patterson in August 1996 which she says amounted to an agreement to engage her on a paid basis in what appears to be the position of an assistant caretaker to her husband, an agreement she says was never honoured by the respondents, and to the fact that two men were ultimately employed as caretakers.

7. Mrs Dunne has made a complaint to the Human Rights and Equal Opportunity Commission under the Sex Discrimination Act 1984 (Cth) against the respondent company. By letter of 11 January 1999, an officer of the Commission informed her that the delegate of the Sex Discrimination Commissioner had decided not to inquire further into her complaint and had referred it to the President in accordance with Mrs Dunne’s request that the President review that decision by the delegate, a course provided for by ss 52(2), (4), (5A) and 52A the Sex Discrimination Act 1984 (Cth). Although the letter indicated that Mrs Dunne could expect to receive a response from the President by the end of March 1999, she tells us that she has never received any such response. This letter from the Commission also refers to her having made a complaint, presumably against the respondent company also, under the Racial Discrimination Act 1975 (Cth), a complaint not accepted by the Commission. The letter also advised Mrs Dunne that if she wished to challenge the latter decision, she could do so by applying to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

8. It is apparent that Mrs Dunne has not taken this advice, but has determined to seek relief against the respondent company and its secretary in the proceedings she has brought in this Court against them.

9. By s 14 the Sex Discrimination Act, it is unlawful for an employer to discriminate against a person on the ground of that person’s sex or marital status in connection with offering or terminating employment.

10. The procedures available to a person for seeking redress in respect of such discrimination are contained in Pt III the Sex Discrimination Act. The person can make a complaint to the Commission under s 50, a course followed by Mrs Dunne. As I have mentioned, the Commissioner can refuse to act on a complaint in the circumstances provided for by s 52(2). In such case, a complainant’s remedy is to seek review by the President of the Human Rights and Equal Opportunity Commission. Where the Commission accepts such a complaint, the Sex Discrimination Commissioner must inquire into it (s 52) and, if the subject matter of the complaint is not settled by conciliation, the Human Rights and Equal Opportunity Commission is required to inquire into the complaint (s 59) and, if it finds the complaint substantiated, the Commission can make a determination which includes a declaration that the respondent has engaged in unlawful discrimination and a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent (s 81(1)). Such a determination is not, however, binding upon any of the parties to it (s 81(2)). The means by which Commission determinations in respect of discrimination can be enforced by the complainant are dealt with in s 83A the Sex Discrimination Act: the complainant must institute proceedings in the Federal Court to enforce the Commission’s determination. This involves a fresh hearing of the complaint. But there is no entitlement to bring proceedings in respect of discrimination made unlawful by s 14 the Sex Discrimination Act to this Court in the first instance. Mrs Dunne also referred in her material to s 52 the Trade Practices Act 1974 (Cth). There is, however, no basis discernible from this material for a claim by her for relief under that Act against either respondent. Mrs Dunne mentioned an oral contract of employment having been arrived at in August 1996 with Mr Patterson. But following the determination of invalidity of the cross-vesting legislation, this Court has no power to deal with a claim in common law on a contract of the kind that Mrs Dunne raises. Unfortunate though the position may be, this Court has no power to inquire into any of the complaints that Mrs Dunne wishes to make against the Astor Pty Ltd or its secretary. The learned primary judge was therefore correct in dismissing Mrs Dunne’s application. It would follow that her appeal must also be dismissed.

11. MATHEWS J:  I agree with the order proposed by the presiding judge and with the reasons that he has given for it.

12. MANSFIELD J:  I also agree.

13. DRUMMOND J:  The order of the Court therefore will be that the appeal is dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Mathews and Mansfield.

Associate:

Dated:             7 December 1999

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Mr JC Kelly SC
Date of Hearing:	26 November 1999
Date of Judgment:	26 November 1999