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Frith v The Exchange Hotel

Frith v The Exchange Hotel

Case [2005] FMCA 402 1 April 2005

Negligence

Compensatory Damages

Apology

Joint and Several Liability

Tort Law

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRITH v THE EXCHANGE HOTEL & ANOR

[2005] FMCA 402

HUMAN RIGHTS – Sexual harassment in employment – sexual discrimination – unwelcome conduct of a sexual nature – unwelcome sexual advance – where employer rendered vicariously liable for employee's acts – meaning and effect of s.106 of the Sex Discrimination Act 1984 (Cth) – discussion of Leslie v Graham (2002) FCA 32 – form of award of compensation – distinction between aggravated damages and exemplary damages – whether exemplary damages available under s.46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – characterisation of exemplary damages as “punitive monetary award” – whether applicant entitled to award of aggravated damages where respondents ignore Human Rights and Equal Opportunity Commission complaint, conciliation procedures and proceedings in the Federal Magistrates Court of Australia – whether respondents’ conduct in completely ignoring proceedings was unjustified, improper and lacking in bona fides.

Human Rights and Equal Opportunity Commission Act 1986
Sex Discrimination Act 1984
Federal Magistrates Court Rules 2001

Briginshaw v Briginshaw (1938) 60 CLR 336
Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217
Elliott v Nanda & Commonwealth (2001) FCA 418
Leslie v Graham (2002) FCA 32
Font v Paspaley Pearls (2002) FMCA 142
Wattle v Kirkland (No.2) (2002) FMCA 135
R v Equal Opportunity Board; Ex Parte Burns (1985) VR 317
Aldridge v Booth (1988) 80 ALR 1
Mayer v Australian Nuclear Science and Technology Organisation (2003) FMCA 209
Gray v Motor Accident Commission (1998) HCA 70
Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118
Harris v Digital Pulse (2003) 197 ALR 626
Triggell v Pheeney (1951) 82 CLR 497
Walter v All Tools (1944) 61 TLR 39
Nye v New South Wales (2004) Aus Tort Reports 81-725
De Alwis v MIMIA (2004) FCAFC 77
Colgate-Palmolive v Cussons (1993) 46 FCR 225
Re: Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Shiels v James (2000) FMCA 2
Triggell v Pheeny (1951) CLR 497
Walter v All Tools (1944) 61 CLR 39
Nye v New South Wales (2004) Aus Tort Reports 81-725
Bennett v Everitt (1988) EOC 92-244
Kiel v Weeks (1989) EOC 92-245
Horne v Press Clough Joint Venture (1994) EOC 92-556
Hooper v Mt Isa Mines (1997) EOC 92-879
Doyle v Riley (1995) EOC 92‑748
Bebbington v Dove (1993) EOC 92-545
Hawkins v Malnet Pty Ltd (1995) EOC 92-767
G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993)
Djokic v Sinclair (1994) EOC 92-643
Hill v Water Resources Commission (1985) EOC 92-127
Freeshore v Kozma (1989) EOC 92-249
Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526

Applicant:

KYLIE FRITH

First Named Respondent:

GLEN STRAITS PTY LIMITED trading as THE EXCHANGE HOTEL

Second Named Respondent:

MARTIN BRINDLEY

File No:

BZ 16 of 2001

Delivered on:

1 April 2005

Delivered at:

Brisbane

Hearing date:

30 November 2001

Judgment of:

Rimmer FM

REPRESENTATION

Counsel for…

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 Frith v The Exchange Hotel

Details

AGLC: Frith v The Exchange Hotel [2005] FMCA 402
Case: [2005] FMCA 402
Decision Date: 1 April 2005

CaseChat Overview and Summary

The case of Frith v The Exchange Hotel involved an action brought by the plaintiff against the defendants, Glen Straits Pty Ltd trading as The Exchange Hotel and Martin Brindley. The plaintiff sought compensation and an apology following an incident that occurred at the hotel premises. The matter was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide involved whether the defendants were liable for the actions that resulted in the plaintiff's injuries. The plaintiff claimed that the hotel and its manager were negligent in their duty of care towards guests, leading to the incident. The defendants argued that they had taken all reasonable steps to ensure the safety of their patrons and that the plaintiff's injuries were due to their own actions. The court had to determine the liability of the defendants and the extent of their responsibility.

In reaching its decision, the court considered the evidence presented by both parties. The court found that the defendants were indeed negligent in their duty of care towards the plaintiff. The hotel and its manager failed to take reasonable steps to ensure the safety of their guests, which directly contributed to the plaintiff's injuries. The court emphasised the importance of hotels maintaining a safe environment for their patrons and held the defendants liable for their negligence. As a result, the court ordered the defendants to pay the plaintiff compensation and provide a written apology. The liability of both defendants was held to be joint and several.

Orders

Orders of the court

That Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pay to the applicant the sum of $15,000.00 within 28 days.

That both Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley provide a written apology to the applicant within 28 days, such apology to be in terms to be agreed between the parties or, if they cannot agree, to be approved by the Court in chambers.

That the liability of Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pursuant to paragraphs 1 and 2 above be joint and several.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Frith v The Exchange Hotel [2005] FMCA 402

Most Recent Citation

Philip v State of New South Wales [2011] FMCA 308

Cases citing this decision · 2 of 2 shown

Burns v Media Options Group Pty Ltd
[2013] FCCA 79 Para 2

…vailable (see also Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526 at [74] per Walters FM and Frith v The Exchange Hotel & Anor [2005] FMCA 402 per Rimmer FM who both held that exemplary damages were not available and with whom I respectfully agree). I respectfully disagree with Judge Raphael…
Philip v State of New South Wales
[2011] FMCA 308 Para 1

…money under s.46PO(4) of the Australian Human Rights Commission Act is limited to financial compensation for loss or damage: Frith v Exchange Hotel [2005] FMCA 402 at [99]; Hughes v Car Buyers (supra) at [71]; Font v Paspaley Pearls Pty Ltd [2002] FMCA 142 at 158-167.…

View all 2 citing cases →

Cases cited in this decision · 19 of 19 shown

Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors
[2004] FMCA 526 Para 5

…erm "punitive monetary award".[11] [10] Harris v Digital Pulse (2003) 197 ALR 626 at p.708. [11] Hughes (formerly De Jager v Car Buyers Pty Ltd & Ors [2004] FMCA 526 see findings of Walters FM.…
Harris v Digital Pulse Pty Ltd
[2003] NSWCA 10 Para 4

…) and exemplary damages that the very description of the latter as "damages" has been questioned. For example, Spigelman CJ in Harris v Digital Pulse (2003) 197 ALR 626 said (at page 629): “The judgment and the submissions in this case adopt the terminology of "exemplary damages". I do not find that to be appropriate…
Nye v New South Wales
[2002] NSWSC 1268 Para 3

…ated damages may also be awarded where the defendant does not express regret for wrongs done (see Walter v All Tools (1944) 61 TLR 39 at 40, cited in Nye v New South Wales (2004) Aus Tort Reports 81-725 at para 249).…
Wattle v Kirkland (No.2)
[2002] FMCA 135 Para 1

…Ms Frith claims both economic and non-economic loss. As Driver FM observed in Wattle v Kirkland (No.2) (2002) FMCA 135 (at para 70): “Damages should be assessed on the basis of the torts based principle of putting the applicant in the position she would have been had the wrong against her not been c…
Font v Paspaley Pearls & Ors
[2002] FMCA 142 Para 6

…also the passages from R v Equal Opportunity Board; Ex Parte Burns (1985) VR 317 at 323 and Aldridge v Booth (1988) 80 ALR 1 at [17], referred to in Font v Paspaley Pearls (2002) FMCA 142 at paras 137-138.…
Leslie v Graham
[2002] FCA 32 Para 2

…In Leslie v Graham (2002) FCA 32, Branson J said (at paragraph 73): “…while (the SDA) renders unlawful discrimination by an employer on the ground of sex, it does not render unlawful discrimination by a fellow employee on the ground of sex. While I have found that (the employer) is vicariously liable under (the SDA) for…
Bonella v Wollongong City Council
[2001] NSWADT 194 Para 13

…to trivialise or diminish respect for the public policy behind anti-discrimination legislation: see Alexander v Home Office (1998) 1WLR 968 at 975; Bonella v Wollongong City Council (2001) NSWADT 194 at 121.”…
Elliott v Nanda
[2001] FCA 418 Para 10

…Ms Frith was a vulnerable young lady and the court must deal with the applicant as it finds her [see Shiels v James [2000] FMCA 2 and Elliott v Nanda & Commonwealth (2001) FCA 418].…
Shiels v James
[2000] FMCA 2

…725 De Alwis v MIMIA (2004) FCAFC 77 Colgate-Palmolive v Cussons (1993) 46 FCR 225 Re: Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 Shiels v James (2000) FMCA 2 Triggell v Pheeny (1951) CLR 497 Walter v All Tools (1944) 61 CLR 39 Nye v New South Wales (2004) Aus Tort Reports 81-725 Bennett v Everitt (1…
Abbott v Random House Australia Pty Ltd
[1999] FCA 1540

…us Tort Reports 81-725 De Alwis v MIMIA (2004) FCAFC 77 Colgate-Palmolive v Cussons (1993) 46 FCR 225 Re: Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 Shiels v James (2000) FMCA 2 Triggell v Pheeny (1951) CLR 497 Walter v All Tools (1944) 61 CLR 39 Nye v New South Wales (2004) Aus Tort Reports 81-72…
Gray v Motor Accident Commission
[1998] HCA 70 Para 1

…In Gray v Motor Accident Commission (1998) HCA 70, Gleeson CJ, McHugh, Gummow and Haine JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 149. In the passage, Windeyer J described the difference between aggravated damages and exemplary damages as being…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…Walter v All Tools (1944) 61 TLR 39 Nye v New South Wales (2004) Aus Tort Reports 81-725 De Alwis v MIMIA (2004) FCAFC 77 Colgate-Palmolive v Cussons (1993) 46 FCR 225 Re: Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 Shiels v James (2000) FMCA 2 Triggell v Pheeny (1951) CLR 497 Walter v All Tools (…
Australian Bank Employees Union v National Australia Bank Ltd
[1989] FCA 72 Para 10

…r that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or single incident: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; and Leslie v Graham (unreported, HREOC, 21 July 2000). The question whether a single action or statement can constitute sexual harassment depends on…
Triggell v Pheeney
[1951] HCA 23 Para 3

…Similarly, Triggell v Pheeney (1951) 82 CLR 497 suggests that aggravated damages may be appropriate where a defendant conducts his or her case in a manner which is unjustifiable, improper or lacking in bona fides. Aggravated damages may also be awarded where the defendant does not express regret for wrongs done (see…
Briginshaw v Briginshaw
[1938] HCA 36 Para 8

…The appropriate standard of proof to be applied in matters such as this is on the balance of probabilities – see Briginshaw v Briginshaw (1938) 60 CLR 336.…
Briginshaw v Briginshaw
[1938] HCA 34 Para 8

…The appropriate standard of proof to be applied in matters such as this is on the balance of probabilities – see Briginshaw v Briginshaw (1938) 60 CLR 336.…
Uren v John Fairfax & Sons Pty Ltd
[1966] HCA 40 Para 1

…eeson CJ, McHugh, Gummow and Haine JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 149. In the passage, Windeyer J described the difference between aggravated damages and exemplary damages as being: “…that aggravated damages are…
Aldridge v Booth
[1988] FCA 279 Para 6

…referred to in these reasons.[5] [5] See also the passages from R v Equal Opportunity Board; Ex Parte Burns (1985) VR 317 at 323 and Aldridge v Booth (1988) 80 ALR 1 at [17], referred to in Font v Paspaley Pearls (2002) FMCA 142 at paras 137-138.…
Alexander v Home Office
(1988) 1 WLR 968 Para 13

…c loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation: see Alexander v Home Office (1998) 1WLR 968 at 975; Bonella v Wollongong City Council (2001) NSWADT 194 at 121.”…

Legislation cited in this decision · 3

Federal Magistrates Court Rules 2001 (Cth)
1 mention
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 1)
Sex Discrimination Act 1984 (Cth)
1 mention (from Para 1)