Legal Research
Cases
Gauci v Kennedy

Gauci v Kennedy

Case [2005] FMCA 1505 12 October 2005

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAUCI v KENNEDY & ANOR

[2005] FMCA 1505

HUMAN RIGHTS – Sex discrimination – sexual harassment – vicarious liability – whether complaint of sexual harassment can be sexual harassment of itself.

Human Rights and Equal Opportunity Commission Act 1986, s.46PO(3)
Sex Discrimination Act 1984, ss.5, 14, 28A, 28F, 94, 105, 106
Federal Magistrates Court Rules 2001, r.13.10
Anti-Discrimination Act 1991 (Qld)

Applicant A135/2002 v Minister for Immigration [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677
Bender v Bovis Lend Lease Pty Ltd (2003) FMCA 277
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Chung v University of Sydney [2001] FMCA 94
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
General Steel Industries Incorporated v The Commissioner for Railways of
New South Wales (1964) 112 CLR 125
Giovanni v Wilkinson [2004] FMCA 891
Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721
Lee v Minister for Immigration [2002] FMCA 279
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
Paramasivam v Grant & Anor [2001] FCA 758
Re Morton; Ex Parte Mitchell Products Pty Ltd (1996) 21 ASCR 497
Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160
SZBBL v MIMIA (2004) FMCA 185
SZBWF v Minister for Immigration [2004] FMCA 83
Tardy v Secretary of the Department of Community Services and Health
(9 October, 1990, SC(NSW), 4015 of 1989, unreported)
Travers v State of NSW (2000) FCA 1565
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department [1999] FCA 365
Yo Han Chung v University of Sydney [2002] FCA 186

Applicant:

PETER JOHN GAUCI

First Respondent:

CRISTELLE JANE KENNEDY

Second Respondent:

UNIVERSITY OF QUEENSLAND

File Number:

BRG427 of 2004

Judgment of:

Jarrett FM

Hearing date:

6 December, 2004

Date of Last Submission:

6 December, 2004

Delivered at:

Brisbane

Delivered on:

12 October, 2005

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr Reed

Solicitors for the First Respondent:

Woods Prince

Counsel for the Second Respondent:

Mr Bradley

Solicitors for the Second Respondent:

Brian Bartley & Associates

ORDERS

That the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act1984 be dismissed;
That otherwise the second respondent's application filed on 1 November 2004 be dismissed;
Adjourn all outstanding applications for directions to 9.30am on

24 October 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG427 of 2004

PETER JOHN GAUCI

Applicant

And

CRISTELLE JANE KENNEDY

First Respondent

And

UNIVERSITY OF QUEENSLAND

Second Respondent

REASONS FOR JUDGMENT

By his application filed on 10 August, 2004 the applicant seeks orders under the Human Rights and Equal Opportunity Commission Act 1986 (“HREOCA”) that the first and second respondents apologise to him and that they pay him financial compensation.…

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 Gauci v Kennedy

Details

AGLC: Gauci v Kennedy [2005] FMCA 1505
Case: [2005] FMCA 1505
Decision Date: 12 October, 2005

CaseChat Overview and Summary

In the case of Gauci v Kennedy, the applicant, Ms Gauci, brought a claim against the second respondent, Mr Kennedy, alleging that he had breached provisions of Part II Division 3 of the Sex Discrimination Act 1984. The case was heard in the Federal Court of Australia, which was tasked with determining the validity of Ms Gauci's claim against Mr Kennedy and any associated legal issues.

The primary legal issue before the court was whether Ms Gauci had substantiated her allegations of sex discrimination against Mr Kennedy under the relevant provisions of the Sex Discrimination Act. The court needed to assess the evidence presented and determine if Mr Kennedy's actions constituted a breach of the law as alleged. Additionally, the court was required to consider whether the application filed by the second respondent on 1 November 2004 had merit and if it should be granted.

The court found that Ms Gauci's claim for relief against Mr Kennedy was not substantiated by the evidence presented. Consequently, the court dismissed the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act 1984. Furthermore, the court dismissed the second respondent's application filed on 1 November 2004. The court then adjourned all outstanding applications for directions to 9.30am on 24 October 2005, providing further instructions for the proceedings.

Orders

Orders of the court

That the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act 1984 be dismissed;

That otherwise the second respondent's application filed on 1 November 2004 be dismissed;

Adjourn all outstanding applications for directions to 9.30am on

24 October 2005.

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

Gauci v Kennedy [2005] FMCA 1505

Most Recent Citation

Gauci v Kennedy [2006] FCA 869

Cases citing this decision · 6 of 6 shown

Janina Leo v Christian Outreach Centre & Brian Mulheran
[2024] QCAT 91 Para 9

…t by the respondent that the case is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. [8] Gauci v Kennedy [2005] FMCA 1505; Rama v University of South Australia [2004] 136 FCR 344, 354-355.…
Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran
[2024] QCAT 90 Para 10

…t by the respondent that the case is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. [6] Gauci v Kennedy [2005] FMCA 1505; Rama v University of South Australia [2004] 136 FCR 344, 354-355.…
Lawrance v Refugee Review Tribunal & Ors (No.2)
[2008] FMCA 1499 Para 2

…ication such as this (see Lawrance v The Commonwealth of Australia & Ors[51] at [12]; Gauci v Kennedy & Anor[52] at [53]). [51] [2006] FMCA 1792 [52] [2005] FMCA 1505…
Gauci v Kennedy
[2007] FCA 1051 Para 1

…This is an appeal from a decision of Jarrett FM of 12 October 2005 ( Gauci v Kennedy [2005] FMCA 1505) where his Honour summarily dismissed a claim of Mr Gauci (“the appellant”) for relief against the second respondent for a breach of Pt II Div 3 Sex Discrimination Act 1984 (Cth) (“SD Act”).…
Lawrance v Commonwealth of Australia & Ors
[2006] FMCA 1792 Para 12

…uirement of an application such as is now brought by the applicant. Such appears to have been the opinion of Jarrett FM in Gauci v Kennedy & Anor [2005] FMCA 1505 at [53].…
Gauci v Kennedy
[2006] FCA 869 Para 1

…s an extension of time to file and serve out of time a notice of appeal from the decision of Jarrett FM made 12 October 2005 ( Gauci v Kennedy & Anor [2005] FMCA 1505). In that decision the learned Federal Magistrate dismissed the applicant’s claim for relief against the second respondent for a breach of any provis…

View all 6 citing cases →

Cases cited in this decision · 19 of 19 shown

Damiano v Wilkinson
[2004] FMCA 891

…td (1963) 154 CLR 87 General Steel Industries Incorporated v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 Giovanni v Wilkinson [2004] FMCA 891 Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721 Lee v Minister for Immigration [2002] FMCA 279 McKellar v Container Terminal Manage…
Hollingdale v Northern Rivers Area Health Service
[2004] FMCA 721 Para 1

…on by an applicant to those facts considered by the HREOC: Travers v State of NSW (2000) FCA 1565; Bender v Bovis Lend Lease PTY LTD (2003) FMCA 277; Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721, Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 and Giovanni v Wilkinson (2004) FMCA 891.…
SZBWF v Minister for Immigration
[2004] FMCA 83 Para 2

…tile Credits Ltd (1963) 154 CLR 87 at [99] [9] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194 [10] SZBWF v Minister for Immigration [2004] FMCA 83 per Barnes FM at [25]…
Rispoli v Merck Sharpe and Dohme and Ors (No.2)
[2003] FMCA 516 Para 2

…This application can only be made against parties to the original HEROC complaint: Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573, Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160. The second respondent argues that no complaint was made against the second respondent because only Professor Gardner, Dr Bowey, a Marnie King, Luis…
Bender v Bovis Lend Lease Pty Ltd
[2003] FMCA 277 Para 1

…46PO(3) is to limit the facts that can be relied upon by an applicant to those facts considered by the HREOC: Travers v State of NSW (2000) FCA 1565; Bender v Bovis Lend Lease PTY LTD (2003) FMCA 277; Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721, Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 and Giovanni v…
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 708 Para 2

…r for Railways (above) [7] See Lee v Minister for Immigration [2002] FMCA 279 at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Dep…
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 677 Para 2

…Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J [8] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at […
Lee v Minister for Immigration
[2002] FMCA 279 Para 2

…1], per Mason CJ, Deane and Dawson JJ [6] See General Steel Industries Inc v Commissioner for Railways (above) [7] See Lee v Minister for Immigration [2002] FMCA 279 at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v…
Yo Han Chung v University of Sydney & Ors
[2002] FCA 186 Para 1

…out by the applicant" [11]. [11] Chung v University of Sydney (above) at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186.…
Chung v University of Sydney
[2001] FMCA 94 Para 2

…les (1964) 112 CLR 125 at 129 - 130; Webster v Lampard (1993) 177 CLR 598 [2] Paramasivam v Grant & Anor [2001] FCA 758; Chung v University of Sydney [2001] FMCA 94 [3] compare the rules dealt with in General Steel Industries Incorporated (above), Dey v Victorian Railways Commissioner (1949) 78 CLR 62 with FMCR 1…
Paramasivam v Grant & Anor
[2001] FCA 758 Para 2

…The Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 129 - 130; Webster v Lampard (1993) 177 CLR 598 [2] Paramasivam v Grant & Anor [2001] FCA 758; Chung v University of Sydney [2001] FMCA 94 [3] compare the rules dealt with in General Steel Industries Incorporated (above), Dey v Victorian Railw…
Travers v State of New South Wales
[2000] FCA 1565 Para 1

…The effect of s.46PO(3) is to limit the facts that can be relied upon by an applicant to those facts considered by the HREOC: Travers v State of NSW (2000) FCA 1565; Bender v Bovis Lend Lease PTY LTD (2003) FMCA 277; Hollingdale v Northern Rivers Area Health Service (2004) FMCA 721, Charles v Fuji Xerox Australia Pty Ltd (2000)…
Charles v Fuji Xerox Australia Pty Ltd
[2000] FCA 1531

…105 FCR 573, Rispoli v Merck Sharpe & Dohme & Ors (2003) FMCA 160. The second respondent argues that no complaint was made against the second respondent because only Professor Gardner, Dr Bowey, a Marnie King, Luisa Nocella, Ann Stewart, Dr Tony Arklay and Roger Byrom were mentioned in the complaint. Indeed, o…
McKellar v Container Terminal Management Services Ltd
[1999] FCA 1639 Para 3

…Another formulation of the principles is to be found in McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 where Weinberg J reviewed the authorities and continued: They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the…
Xie v Immigration Department
[1999] FCA 365 Para 2

…2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J [8] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99] [9] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 1…
Webster v Lampard
[1993] HCA 57 Para 2

…[10]. [1] General Steel Industries Incorporated v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 129 - 130; Webster v Lampard (1993) 177 CLR 598 [2] Paramasivam v Grant & Anor [2001] FCA 758; Chung v University of Sydney [2001] FMCA 94 [3] compare the rules dealt with in General Steel Industri…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25 Para 2

…gration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J [8] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99] [9] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194 [10] SZBWF v Minister for Immigration [2004] FMCA 83 per Barnes FM at [2…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 2

…or it is a hopeless case with no chance of success[10]. [1] General Steel Industries Incorporated v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 129 - 130; Webster v Lampard (1993) 177 CLR 598 [2] Paramasivam v Grant & Anor [2001] FCA 758; Chung v University of Sydney [2001] FMCA 94 [3] com…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 2

…ity of Sydney [2001] FMCA 94 [3] compare the rules dealt with in General Steel Industries Incorporated (above), Dey v Victorian Railways Commissioner (1949) 78 CLR 62 with FMCR 13.10, Federal Court Rules O11 r16 and O20 r 2 [4] according to Driver FM in SZBBL v MIMIA (2004) FMCA 185 [5] See Webster v Lampard (above…

Legislation cited in this decision · 6

Sex Discrimination Act 1984 (Cth)
105, 106, 14, 28A, 28F, 5, 94 8 mentions (from Para 1)
Federal Magistrates Court Rules 2001 (Cth)
13.10 2 mentions (from Para 2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
46PO(3) 2 mentions (from Para 1)
Anti-Discrimination Act 1991 (Qld)
1 mention (from Para 8)
WorkCover Queensland Act 1996 (Qld)
1 mention (from Para 1)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
1 mention (from Para 1)