Fricke v Whyburn

[2003] NSWADT 10

CITATION:	Fricke v Whyburn [2003] NSWADT 10
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Randolf Fricke RESPONDENT Anthony Whyburn
FILE NUMBER:	011074
HEARING DATES:	01/05/02
SUBMISSIONS CLOSED:	05/01/2002
DATE OF DECISION:	01/17/2003
BEFORE:	Rice S - Judicial Member; Edwards K - Member; Nemeth de Bikal L - Member
APPLICATION:	Sexual Harassment - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Interpretation Act 1987
CASES CITED:	Malone and Health Insurance Commission [1996] HREOCA 38 Cooke v Plauen Holdings (2001) FMCA 91 Vercoe v AMP Shopping Centres Pty Limited and Hardy [1999] NSWADT 89 ACT Department of Education & Training v Prendergast [2000] ACTDT 6 Tu v University of Sydney (No.2) (EOD) [2002] NSWADTAP 25 Sivananthan v Commissioner of Police [2002] NSWADT 45
REPRESENTATION:	APPLICANT In person RESPONDENT J Gormly SC
ORDERS:	1 Pursuant to s 113(1)(a) the complaint is dismissed.

1 For the reasons given below, the complaint is found to be unsubstantiated and is dismissed. This means that Mr Fricke's application to this Tribunal is unsuccessful.

COMPLAINT AND REFERRAL

2 On 14 November 2000 the Anti-Discrimination Board received a letter of complaint from Mr Fricke. Mr Fricke's complaint was clearly stated:

I would like to make a sexual harassment complaint against Anthony Whyburn . . . Anthony Whyburn is a lawyer who represented me during mediation at the Administrative Decisions Tribunal on 17 July 2000. I was molested on two occasions, on that date, between 10.30am and about 2.30pm. On one occasion he put both his hands on my right arm. On a later occasion, he put his hand on the top of my right leg, near my genital area. I looked down to see where he had placed his hand and indicated that he should remove his hand, which he did. I was seated next to him, so I could not move away quickly to avoid physical contact. . . . he knew very well that I do not like being touched by men, particularly anywhere on about the genital region. He knew that it was likely that I would be offended, humiliated and intimidated by his actions.

3 The President investigated the complaint and, on 10 September 2001, declined it as lacking in substance under section 90(1) of the Anti-Discrimination Act '(the Act'). Exercising his right under section 91(2) of the Act, Mr Fricke asked that his complaint be referred to this Tribunal for inquiry.

STRIKE OUT APPLICATION

4 On 6 December 2001 Mr Whyburn made an application under Section 111 of the Act for Mr Fricke's complaint to be dismissed. That application was refused for reasons published on that date, and the matter was listed for hearing. Quoting from the Tribunal's ex tempore reasons:

[M]aterial in the President's report indicates to the Tribunal . . . that independent witnesses are unable to say that they saw conduct complained of took place. [W]hether the conduct took place is a matter for determination on the evidence, and there is insufficient in the material before us…