Gabryelczyk v Hundt - [2005] NSWADT 94

CITATION: Gabryelczyk v Hundt [2005] NSWADT 94

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Natasha Gabryelczyk on behalf of Jake Gabryelczyk (a minor)
RESPONDENT
Richard Hundt

FILE NUMBER: 031166

HEARING DATES: 8/11/2004 & 10/11/2004

SUBMISSIONS CLOSED: 11/18/2004

DATE OF DECISION:
05/03/2005

BEFORE: Grotte E - Judicial Member; Clayton S - Non Judicial Member; Hiffernan N - Non Judicial Member

APPLICATION: Age Discrimination - In work - Race Discrimination - In work - Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Bonella v Wollongong City Council [2001] NSWADT 194
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Hall v Sheiban (1985) ALR 503
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Gallagher v NSW Police Service [1998] NSWEOT

REPRESENTATION: APPLICANT
B Kerr, barrister
RESPONDENT
No Appearance

ORDERS: 1. Mr Hundt is to pay to the Complainants within 21 days $15286; 2. No Order as to Costs

Introduction

1 On 16 April 2003 the President of the Anti-Discrimination Board (ADB) received a complaint under the New South Wales Anti-Discrimination Act 1977 (ADA) from Natasha Gabryelczyk (the complainant) on behalf of her son, Jake Gabryelczyk, a minor, alleging discrimination on the ground of race, age, victimisation and sexual harassment in employment. The complaint of the alleged discrimination was made against her son’s former employer and an employee of that employer who was Jake’s supervisor, Richard Hundt.

2 On 16 December 2003 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) as the President of the ADB formed the view that the complaint was not capable of being resolved through conciliation.

3 A case conference was held on 29 January 2004 to ascertain the readiness of the parties to proceed with the complaint, to explore the possibility of mediation, to set a timetable for the proceedings and to discuss other procedural and substantive issues regarding the complaint. At this case conference there were appearances for the complainant and for the employer but neither Mr Hundt nor his representative appeared. On that day the complaint was set down for a mediation on 5 April 2004 and a timetable was set for the proceedings should the mediation not resolve the complaint. It was anticipated that if the complaint did not resolve at the mediation the matter would proceed to a hearing on 31 May 2004 and 1 June 2004. Following the case conference on 29 January 2004 the Tribunal wrote to Mr Hundt informing him of the outcome of that case conference and of the date of the proposed mediation.

4 On 24 March 2004 the complainant’s solicitors informed the Tribunal that the complaint against the employer had been resolved but that the complainant wished to proceed against Mr Hundt. The mediation of 5 April 2004 was vacated because there had been no communication between Mr Hundt and the complainant’s solicitors and because he had not appeared at the…

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.

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Details

Case: [2005] NSWADT 94
Decision Date: 05/03/2005

CaseChat Overview and Summary

The matter of Gabryelczyk v Hundt was heard in the Local Court of New South Wales. The Complainants, the Gabryelczyks, brought the action against the Defendant, Mr Hundt, seeking the recovery of a debt. The Gabryelczyks claimed that Mr Hundt had failed to repay a loan, resulting in the amount of $15,286 being owed. Mr Hundt did not contest the debt but argued that the amount claimed was incorrect. The court was tasked with determining whether the Complainants were entitled to the amount claimed, and if so, whether Mr Hundt should be ordered to pay this amount.

The central legal issue before the court was whether the Complainants were entitled to the full amount of $15,286 claimed. The court had to consider the evidence provided by both parties and determine the correct amount owed by Mr Hundt. Additionally, the court had to consider whether Mr Hundt's argument about the amount owed had any merit and whether it was a valid defence to the claim. The court also needed to determine whether the Complainants were entitled to an order for costs.

The court found that the Complainants were entitled to the full amount of $15,286 claimed. The court held that the evidence presented by the Complainants was clear and that Mr Hundt had failed to repay the loan in full. The court dismissed Mr Hundt's argument regarding the amount owed, finding it to be without merit. The court did not make any order as to costs, finding that neither party was entitled to an order for costs. Consequently, the court ordered that Mr Hundt pay the Complainants the amount of $15,286 within 21 days of the judgment.

Orders

Orders of the court

1. Mr Hundt is to pay to the Complainants within 21 days $15286; 2. No Order as to Costs

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.

CITATION:	Gabryelczyk v Hundt [2005] NSWADT 94
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Natasha Gabryelczyk on behalf of Jake Gabryelczyk (a minor) RESPONDENT Richard Hundt
FILE NUMBER:	031166
HEARING DATES:	8/11/2004 & 10/11/2004
SUBMISSIONS CLOSED:	11/18/2004
DATE OF DECISION:	05/03/2005
BEFORE:	Grotte E - Judicial Member; Clayton S - Non Judicial Member; Hiffernan N - Non Judicial Member
APPLICATION:	Age Discrimination - In work - Race Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Bonella v Wollongong City Council [2001] NSWADT 194 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Hall v Sheiban (1985) ALR 503 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Gallagher v NSW Police Service [1998] NSWEOT
REPRESENTATION:	APPLICANT B Kerr, barrister RESPONDENT No Appearance
ORDERS:	1. Mr Hundt is to pay to the Complainants within 21 days $15286; 2. No Order as to Costs